My name is Diarmuid O'Scannlain and I am a judge on the United States Court of Appeals for the Ninth Circuit with chambers in Portland, Oregon. I very much appreciate the invitation to appear before the Commission today to discuss the future of the federal appellate system and to offer, hopefully, some constructive suggestions for your consideration. Having served as a federal appellate judge for over eleven years on the largest court of appeals in the federal system and written occasionally on judicial administration issues, I am emboldened to make some observations and to propose some suggestions. I emphasize at the outset, however, that I speak only for myself and not on behalf of my court or its members except as individual judges may wish to join me.

I want to touch on four topics briefly: First, what are the practical constraints for structural change given the two fundamental functions of the federal judicial system -- trial and appeal of cases. Second, how best to allocate the law-declaring and error-correcting duties within the appellate function by pursuing opportunities for synergy between the existing circuit and district structures. Third, how discretionary jurisdiction, already established at the Supreme Court level, can be phased in at the court of appeals level. Finally, what to do about realignment of my own circuit, the Ninth Judicial Circuit.

Structural change in the Judicial Branch is hardly an everyday occurrence. Indeed the last formal restructuring of the appellate function took place roughly a century ago with the passage of the Evarts Act in 1891 which first established the court of appeals and gave it appellate review of the district courts of its constituent circuit as a device to relieve the tremendous caseload pressure on the Supreme Court and its circuit-riding justices. No longer would the Supreme Court vary in size to correspond to the growth in the number of circuits, but remain, presumably forever, at nine justices. Nor would district judges thereafter perform both trial and appellate functions routinely sitting on appeals as members of the superceded circuit courts. Each court of appeals was of equal size--three judges--and if cases or population growth necessitated, additional three judge circuits could be carved out of the original nine.

Remarkably, despite a more than four-fold increase in population⁽¹⁾ and a more than 34-fold growth in caseload,⁽²⁾ only two new regional circuits emerged in 107 years, the Tenth, carved out of the Eighth in 1929, and the Eleventh, carved out of the Fifth just 18 years ago. So called Balkanization simply never happened. What did happen was, from a structural standpoint, a greater evil which was probably the root cause of the creation of both the Hruska Commission in 1974 and your Commission today. For, beginning in 1902,⁽³⁾ in response to growth of cases and population, courts of appeals one by one were allowed to expand in size. The Ninth began its inexorable growth to 28 judgeships from three in 1929;⁽⁴⁾ the First was still a three-judge court when I was in law school not that long ago.⁽⁵⁾ Significantly, the structure of the district courts as such has not formally changed since the Judiciary Act of 1789.⁽⁶⁾ Each state would have one or more federal districts comprised of one or more judges as the population and case load dictated.

Whether Senator Evarts could have foreseen today's alignment with approval, we don't know. We do know that you have the task of proposing adjustments to deal with continually increasing caseload and population growth for perhaps the next hundred years. The solution to growth in the past was simply to keep adding more judges on both the courts of appeals and district courts; the Supreme Court remained static and reduced its caseload by receiving entirely discretionary jurisdiction and eliminating direct appeals. The courts of appeals, however, have expanded dramatically since World War II, some to near the breaking point and one past it;⁽⁷⁾ remember, the courts of appeals were created to take a crushing load off the Supreme Court. Shared appellate responsibility worked in 1891; I suggest that it must be employed again to get us through the next hundred years.

I recite this bit of history as prelude to my principal observation: the district court structure can continually absorb additional judges without adverse impact on its duties; the court of appeals cannot do so forever. Some alternative to ever-enlarging courts of appeals must be devised. Federal trials are conducted by one judge in state-delimited districts; since only one judge is required to apply the law in the trial of a case, a district court can add judges almost infinitely in response to growth. But unlike the law-applying district court, the court of appeals has two roles: correcting error on appeal and declaring what the law is for the circuit. Because of its dual role there are limits to expansion of the court of appeals. Adding more judges might help the court of appeals keep up in its error-correcting duties in three-judge panels, but it actually hampers our law-declaring role such as the ability to render circuit-consistent, nationally uniform and timely decisions as a full court.

From my own experience, it is particularly notable that as the size of the court of appeals grows, the level of predictability of decisions among its members diminishes. This is true enough of a twenty-eight active judge court; add our 19 senior judges and dozens of visiting judges and the result is palpable. Consistency of law is a fundamental ingredient in the effective administration of justice. In the appellate context, it requires an environment where a reasonably small body of judges has the opportunity to sit frequently together, enhancing understanding of each other's reasoning, decreasing the possibility of misinformation and misunderstandings, and increasing the tendency toward rendering unanimous decisions. Consistency results from close, regular, and frequent contact in joint decision-making, and it is the goal which binds the judges in a shared commitment to maintain the institutional integrity of circuit law. As the court of appeals continues to grow, it becomes increasingly difficult to maintain the discipline necessary for the court to enforce consistency. When a court grows too large, it is more likely to resemble a legislative body in which strong-willed individuals are prone to developing policy rather than, to paraphrase Chief Justice Marshall, saying what the law is.⁽⁸⁾

Another reason why there are limits to the growth of the court of appeals is that, as the number of judges increases, so does the number of opinions. Beyond handling one's own considerable share of the 8,651 appeals that were filed in our circuit last year (by far the largest volume in the country), the judges on our court are faced with the Sisyphean task of attempting to keep up with the endless stream of opinions issued on a daily basis by our own colleagues. Ours is among the courts which do not have the luxury of pre-circulation. Along with reviewing the opinions themselves, we must closely scrutinize the multitude of petitions for rehearing and suggestions for rehearing en banc that are filed in large percentages of decided cases. Monitoring the output of the Ninth Circuit, in addition to staying abreast of the recent decisions of the Supreme Court and of our sister circuits, puts an enormous strain on judicial resources. As the number of opinions increases, we judges risk losing the ability to keep track of precedents and to know what our circuit's law is. I fear the subtle delegation of Article III powers to law clerks simply because the work is too voluminous for a circuit judge to handle alone; this cannot be tolerated. And this is no idle fear. When I joined the court in 1986, each judge participated in about 180 cases per year, writing about 60 dispositions each. Last year each of us participated in about 518 cases and was responsible for about 180 dispositions, thus tripling our productivity in ten years. Even so, we are not the most burdened court; each judge on the Eleventh Circuit participates in over 700 cases yearly.

Finally, some of us are losing faith in the limited en banc court (11-judge panel) to speak faithfully for the circuit. Several recent Supreme Court 9-0 reversals of our 11-judge en banc decisions have raised serious doubt about the long-term viability of such device.⁽⁹⁾ If it ain't broke, don't fix it, we all say; well, the Ninth Circuit ain't broke yet, but it's on the verge. It certainly isn't the model for the future; adding more circuit judges will no longer work.

Yet while continued growth adversely affects the courts of appeals, it does not similarly affect the district courts. I am in agreement with the statements outlined in the commentary to recommendation 18 of the "Proposed Long Range Plan for the Federal Courts," submitted in March 1995 to the Judicial Conference of the United States. As that report accurately notes: "Unrestrained growth has a different effect on the courts of appeals than on district courts. The effectiveness, credibility and efficiency of a court of appeals is intricately linked to its ability to function as a unified body. A judge's sense that he or she speaks for the whole court and not merely as an individual is critical to an appellate court's ability to shape and maintain a coherent body of law . . . The resulting stability can make radical shifts in the law of the circuit less likely and thereby moderate to some extent the adverse effects of growth."⁽¹⁰⁾ This leads me to believe that part of the solution to the expanding caseload in the appellate courts can be found at the district level.

What I propose, as a start, is the establishment of a first level of appellate review at the district court for certain categories of cases. This idea is not novel, but has been advanced previously for the federal judiciary by a number of commentators, most notably Professor Daniel Meador of the University of Virginia Law School, who now serves as your executive director.⁽¹¹⁾ Judges at the trial level have already been used in an appellate capacity with considerable success, regularly prior to 1911,⁽¹²⁾ but also subsequently, as demonstrated most recently by the success of the Bankruptcy Appellate Panel operating in the Ninth Circuit⁽¹³⁾ and frequent participation by district judges on court of appeals panels. An appellate level of the district court would presumably consist entirely of district judges, although it has been suggested that it might be comprised of some combination of both district and circuit judges "working in the circuit riding tradition."⁽¹⁴⁾ As with the courts of appeals and the Bankruptcy Appellate Panel, district judges sitting in an appellate division would sit in three-judge panels, for the purpose of correcting errors of fact and law in trial court decisions.⁽¹⁵⁾ This duty might be particularly attractive to senior district judges but all active district judges would be rotated onto appellate division assignments over time. The only Article III judge within the district who would not be eligible to sit on the appeal would be the judge who rendered the decision in the trial of the case. The obvious advantages are convenience of the parties and their lawyers, lower cost and faster disposition since almost all appeals would be heard in the same building where they were tried.

I am not advocating that all cases be sent first to an "appellate division of the district court;"⁽¹⁶⁾ I believe that certain categories of cases should bypass the district level of review and proceed directly to the court of appeals for appeal as of right. For example, claims of constitutional deprivation might be reviewed directly by the court of appeals. The cases which I propose should be reviewed first at the district level are those which generally involve fact-intensive claims, rarely present significant substantive issues of law and where the standard of appellate review is extremely deferential. The types of cases that immediately come to mind include diversity cases, some criminal cases, social security disability cases, and non-habeas prisoner cases, although I am certain that other categories could be added to this list.⁽¹⁷⁾ The limited judicial resources of the courts of appeals would thus be better committed to cases which will have precedential impact.

Won't this require the addition of judges at the district court level? In the short run, yes, of course. But over time, no. The courts of appeals would require fewer judges and attrition would transfer judgeships to the districts. The judicial system can expand at its base indefinitely; it can no longer expand in the middle.

I do not think that it is sufficient, however, simply to channel certain types of cases to an appellate division of the district court. To deal adequately with the growing volume crisis in the federal appellate courts, the courts of appeals must be given the power of discretionary review over cases appealed from three-judge district appellate division panels, administrative agencies, Bankruptcy Appellate Panels, and Article I courts. This idea has been advanced previously, most notably in the context of appeals from administrative proceedings;⁽¹⁸⁾ however, I posit that there is no principled reason that it should be limited to such instances. One appeal as a matter of right is sufficient for any case; anything more is an unnecessary duplication of judicial efforts.

Although I recommend that the courts of appeals be given the power to deny review in certain cases, I am not suggesting that we circuit judges necessarily be the last resort in these matters; such a policy would undermine the preeminent position of the Supreme Court in our judicial system. The right to petition the Supreme Court for certiorari must remain unaffected. It would be within the discretion of the Supreme Court to acquiesce in any court of appeals's denial of review, remand the case to the court of appeals for a determination on the merits, or retain the case itself for a decision on the merits.

My vision of the future of the federal judicial system is the fulfillment of the original concept of the Evarts Act -- a small number of circuits (perhaps capped at a dozen compared to the original 9), based on regional affinity and of roughly equal size, each with a diminished court of appeals eventually of equal size (somewhere around 9 judges or less) and most importantly, primarily charged with law-declaring rather than error-correcting duties. Part of the appellate function would be shared with district court appellate divisions limited to error-correcting duties only. All litigants would get one appeal as of right. Most litigants would then have their appeals decided in the same local federal courthouse in which their trials took place, promptly, and at cheaper cost, with the benefit of stable applicable federal law reflecting the judicial wisdom of the region. Future growth in judgeships would be at the district court level which would be offset by reduction in the number of circuit judges.

I turn now to some recent proposals for dividing the Ninth Circuit. The details are set forth on Tables in the Appendix to this statement and presume no jurisdictional restructuring between the court of appeals and the district court.

By way of background, the Ninth Circuit is by far the largest of the 12 regional circuits in the country, alone handling about 20% of the entire federal judicial caseload. Our court of appeals is the largest appellate court in the country, with 28 judgeships; the remaining regional circuits range in size from the Fifth Circuit in New Orleans with 17 judges to the First Circuit in Boston with 6 judges.⁽¹⁹⁾ In terms of population, the disparity is even greater. We serve a population of almost 51 million people; the next largest circuit, the Sixth, covers only 30 million. In fact, the average circuit population (not counting the Ninth or the District of Columbia Circuits) is only 22 million.⁽²⁰⁾ The Ninth Judicial Circuit comprises 16 separate courts, including the United States Court of Appeals for the Ninth Circuit, and 15 district courts found in 9 states and 2 territories ranging from the Rocky Mountains to the Sea of Japan and from the Mexican border to the Arctic Circle. The district courts range in size from the Districts of Guam and the Northern Mariana Islands in Saipan with one judge each, to the Central District of California with 27 judges. ⁽²¹⁾ In all, there are 99 active district judgeships in the circuit, and with the 28 judgeships on my court, the circuit comprises a total of 127 active judgeships.⁽²²⁾

Hruska Commission: Working from the assumption that the Ninth Circuit will inevitably be split, I strongly believe that the best possible division would be that recommended by the Hruska Commission in 1975.⁽²³⁾ Under that proposal, the present Ninth Circuit would be divided into a southwestern twelfth circuit, to consist of the Southern and Central Districts of California and the Districts of Arizona and Nevada, and a northwestern Ninth Circuit, consisting of the Northern and Eastern Districts of California, the Eastern and Western Districts of Washington, and the Districts of Alaska, Oregon, Idaho, Montana, Hawaii, Guam, and the Northern Mariana Islands.⁽²⁴⁾

This proposal has a number of concrete benefits. First, it results in a roughly even split of the Ninth Circuit's current caseload. The Hruska Commission noted that a division of the circuit along these lines would result in a 50/50 split of the cases. Remarkably, what was true then remains essentially true today. Based on 1997 case filings, division of the circuit along the lines suggested by the Hruska Report would leave 53 percent (4,547) of the cases in the southwestern circuit, and 47 percent (4,104) of the cases in the northwestern circuit. In addition, the population would be even more closely divided (25 million to the southwestern circuit, 26 million to the northwestern circuit), as would, presumably, be the judgeships (15 to the southwestern circuit, 13 to the northwestern). Moreover, the Hruska Commission recommendation would be the least costly method of division by far. Under such proposal, no new courthouse or additional staff would be required. Our spacious Pasadena courthouse would become the headquarters of the new southwestern Twelfth Circuit, while the current Ninth Circuit headquarters in our newly renovated historic San Francisco courthouse would continue to serve the new northwestern Ninth Circuit. Existing staff would be allocated appropriately between San Francisco and Pasadena and could be accomplished by transfer.

Of course, an obvious potential concern with the Hruska recommendation is that it divides one state between two circuits, which, as the old saying goes, "has never been done." However, the Hruska Commission carefully analyzed this issue, and concluded that any problems which might arise could be overcome.

First of all, any proposal which would leave California intact in a circuit with a smaller number of states than are presently in the Ninth Circuit would aggravate the problem created by the domination of the Ninth Circuit by California, which today, at almost 32 million people, accounts for 63 percent of our circuit's population and over 61 percent of its case filings. As noted by the Hruska Commission, "the crucial fact is that California today already provides two-thirds of the judicial business of the Ninth Circuit. To keep it intact, and to join it in a circuit with other states, would make it impossible to provide adequate relief for the problems of the circuit."

The Hruska Commission stated that the problems that might arise from a division of California would fall into two broad classes: those involving actual or potential conflicting orders to a litigant, and those involving the promulgation of inconsistent rules of law in suits involving different litigants. In addition, the report noted that witnesses appearing before the Commission raised special concern over the possibility of conflicting decisions as to the validity of state statutes or practices under federal law. However, the Commission concluded that none of these problems is insurmountable.

The Commission specifically noted that the federal court system already contains a number of mechanisms designed to avoid repetitive litigation and conflicting judgments. These mechanisms include rules or statutes authorizing the transfer of cases, changes in venue, staying cases pending decisions in other cases, interpleading necessary parties, and consolidating multidistrict cases for trial in one circuit.

The Commission also noted that the danger that two circuits would hand down inconsistent rulings on issues of state law already exists to some extent, and is a manageable problem. There are already four federal district courts which regularly interpret California law. Occasional disagreements between those courts have not created great difficulties; even among California's own intermediate appellate district courts of appeal consistency cannot be assured. Devices such as federal court abstention or certification of issues to the Supreme Court of California for resolution (particularly now that it has adopted new rules⁽²⁵⁾) would also help alleviate any problem which may arise. Specifically, the report also concluded that there was no concrete evidence that dividing California would increase the problems of forum-shopping.

In any event, one innovative and readily available solution to the problem of potentially inconsistent rulings would be authorization of a special intercircuit en banc panel which could be convened whenever necessary to resolve any conflict which may arise between the two circuits in California. Simply put, any time a California judge on either court of appeals spotted a conflict between the circuits involving state or federal law governing California, he or she could call for an en banc panel of the California judges of both courts to resolve it. I believe that this innovative proposal might well resolve any remaining difficulties stemming from the division of California.

The Hruska Commission recommendation, with the California en banc innovation, deserves your most serious consideration. I also agree with the Hruska Commission's conclusion that "any problems that might arise [from splitting California] are of lesser magnitude and significance than those created by a single state circuit, or any of the other proposals that have been suggested to us."⁽²⁶⁾

Horsecollar Circuit: Another alternative that has been discussed within our circuit is commonly referred to as the "horsecollar" approach, aptly labeled such by our late chief judge and Tucson, Arizona rancher Richard Chambers. Under this approach, California would constitute its own circuit comprised of its existing 4 district courts, while the 11 district courts presently in the other 8 states and 2 territories would surround it like a horsecollar.⁽²⁷⁾ Certainly, California standing alone would be large enough to justify its own circuit; indeed, it would be the largest circuit in the country in terms of population and the third largest in number of appeals filed.

In my view, this proposal is unwise. First and most importantly, the proposal would undermine the principles of federalism. As noted by the Hruska Commission, the federal courts of appeals are designed to be national courts, created primarily to minimize the dangers of parochialism and favorable local law which sometimes arises in state courts. Notwithstanding the District of Columbia Circuit, creating a circuit exclusively for one state might tend to undermine the system of federal courts envisioned by the founding fathers. Moreover, splitting the court in this manner would not be an even split; based on 1997 case filings, 61.3% (5,306) of the cases in the current Ninth Circuit Court of Appeals arise from California alone; only 38.7% (3,345) arise from the remaining 8 states and 2 territories. Finally, this would be a costly option as it would require the construction of a new courthouse. In short, I do not believe that this solution is desirable.

Stringbean Circuit: For the latter two reasons, I also oppose any proposal to create a "stringbean" circuit, which would be the horsecollar circuit minus the Pacific Islands of Hawaii, Guam, and the Northern Mariana Islands.⁽²⁸⁾ The Pacific Islands account for only a very small percentage of our court both in terms of appeals (277 total appeals -- 3.2 percent) and population (1,391,948 -- 2.7 percent). Adding them to California would not alleviate the inequality which accompanies the horsecollar split; the new circuits would still be grossly unequal in terms of numbers of appeals and population. Moreover, this split would again require the costly construction of a new courthouse.

Three-way split: Another proposal which has been discussed is to split the Ninth Circuit into three circuits, in accordance with our existing administrative divisions.⁽²⁹⁾ A northwestern Twelfth Circuit, headquartered in either Portland or Seattle, would have about 21% of the existing Ninth Circuit caseload. A southern Thirteenth Circuit would comprise only the Central and Southern Districts of California, headquartered in Pasadena, but would include about 38% of the caseload. A middle new Ninth Circuit would include the Pacific Islands, the Northern and Eastern Districts of California, Nevada and Arizona. This last circuit would be headquartered in San Francisco and would have approximately 41% of the caseload.

This proposal faces the same difficulty as the "horsecollar" approach in that it would probably force the Congress to spend significant amounts of money creating a new headquarters for at least one of the new circuits. Moreover, it creates a northwestern circuit which, while huge geographically, would be diminutive in terms of population (11,398,499 -- smallest after District of Columbia Circuit), caseload (1,806 case filings -- third smallest after First and District of Columbia Circuits), and judgeships (approximately 8 -- smallest after First Circuit). It does not seem prudent to deal with a crisis of volume at the appellate level by creating a northwestern circuit in which the judges would be significantly underworked in comparison to their southern colleagues.⁽³⁰⁾ This is essentially the reason why I am opposed to any proposal which would create a circuit solely of the northwestern states -- I am disinclined to support any solution which would decrease the workload of some circuit judges on my court at the expense of others.

Having said that, such split would, however, come closer to the goal of providing an even division of cases and population (this time into thirds) than any proposal which does not split California. Also, except for the southern circuit, there is a notable absence of the federalism concerns which accompany a horsecollar circuit.

Hopscotch Circuit: I should also address the recent Senate-proposed split, the "hopscotch" circuit, which would have divided the court into a Ninth Circuit consisting solely of California and Nevada and a new Twelfth Circuit consisting of the remaining 7 states and 2 territories.⁽³¹⁾ This proposal was thankfully defeated. However, in case it is somehow resurrected, I should note some of its more glaring problems.

First, the proposal contained a plan to create "co-equal circuit seats" and "co-equal clerks" in Seattle and Phoenix which would have, presumably, entailed the construction of two new Court of appeals courthouses in those cities, along with the establishment of two full administrative staffs to perform essentially the same functions, and the coordination of two headquarters 1,500 miles apart. This would have been unprecedented and, more importantly, exceedingly costly.

Second, the inclusion of Arizona in an essentially northwest regional circuit would be incongruous indeed. There is no precedent for a "landlocked" state which is not contiguous with another state in the same circuit. No mainland state is isolated from any other state of the same federal judicial circuit. It is beyond dispute that the states in the Pacific-Northwest have more in common with Northern California than with Arizona.

Third, a two-state judicial circuit would be unprecedented. Conventional theory holds that no judicial district court should include less than three states. The new Ninth Circuit would be the first and only circuit to have less than three states in it. (Of course, the District of Columbia Circuit is a special situation).

Fourth, the allocation of judges would be unfair to the remaining Ninth Circuit. The new Twelfth Circuit (13 judges) would have 46 percent of the judges but only 33 percent of the workload, and 34 percent of the population. The new Ninth Circuit (15 judges) would have 54 percent of the judges but 67 percent of the workload and 66 percent of the population.

Pacific Rim Circuit: There are two other possible configurations which have been discussed recently within our circuit, each of which involves moving states into the Tenth Circuit, which may well have the capacity to absorb with little difficulty. The first proposes to move Arizona and Montana to the Tenth Circuit and leave the remaining Ninth Circuit as it is;⁽³²⁾ the second advocates moving all four Ninth Circuit states which are physically contiguous with the Tenth Circuit (Montana, Idaho, Nevada, Arizona) into that court, leaving the remaining Ninth Circuit as the "Pacific Rim" Circuit, all of whose states would border the Pacific Ocean.⁽³³⁾ These proposals appear facially appealing because of the common bond of the Rocky Mountains in the Tenth Circuit and the economic synergy of both the Asian and American portions of the Pacific Rim.

These proposals would do nothing to alleviate the current volume crisis in the Ninth Circuit, however. In fact, assuming the current active judgeships in the aforementioned states would also move to the Tenth Circuit, the situation might actually worsen. If Arizona and Montana were moved to the Tenth Circuit, the ratio of filings per judge in the remaining Ninth Circuit would rise from 309 per year to 320, while that of the Tenth Circuit would rise slightly from 217 to 223. If Arizona, Nevada, Idaho, and Montana were moved to the Tenth Circuit, along with their judgeships, the ratio of filings per judge in the Ninth Circuit would rocket up to 355 per year while that in the Tenth Circuit would actually fall to 208. Consequently, unless some of the transferred judgeships would remain in the Ninth Circuit, moving these states to the Tenth Circuit would not better the existing Ninth Circuit situation in the least.

I deeply appreciate the chance to share these ideas with you today. Your work as a commission is crucial to insuring that the machinery of the federal judicial system is adjusted appropriately to bring about the best results for the next century.

I will be happy to answer any questions you may have.

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1. ¹ The population of the United States rose from approximately 62,622,250 in 1890 to 269,302,443 in 1996. Historical Statistics of the United States and Population Estimates Program, July 1996, U.S. Department of Commerce, Bureau of the Census, Washington, D.C.

2. ² Baker, Rationing Justice of Appeal: The Problems of the U.S. Courts of Appeals 201 n.70 (1994)

3. ³ The Second Circuit was expanded to four judges in 1902. Act of April 17, 1902, 32 Stat. 106.

4. ⁴ Act of March 1, 1929, 45 Stat. 1414, increasing the number of circuit judges to four. The court was still at nine judges as recently as 1968. Act of June 18, 1968, 82 Stat. 184 (increasing number of circuit judges to thirteen).

5. ⁵ In fact, the First Circuit did not expand to four judgeships until 1978. Act of October 20, 1978, 92 Stat. 1632.

6. ⁶ Act of Sept. 24, 1789, ch.20, 1 Stat. 73.

7. ⁷ At 26 judges, the Fifth Circuit split in 1980 as recommended by the Hruska Commission. Act of October 14, 1980, 94 Stat. 1994.

8. ⁸ Marbury v. Madison, 1 Cranch 137, 176 (1803) ("It is, emphatically, the province ad duty of the judicial department, to say what the law is.").

9. ⁹ See, e.g., Compassion in Dying v. State of Washington, 79 F.3d 790 (9th Cir. 1996) (en banc), rev'd sub nom, Washington v. Glucksberg, 117 S. Ct. 2258 (1997); Yniguez v. Arizonans for Official English, 69 F.3d 920 (9th Cir. 1995) (en banc), rev'd, 117 S. Ct. 1055 (1997). Of the 19 limited en banc court cases heard by the Supreme Court in the first 17 years of its use, 16 have been reversed and 3 affirmed for an 84% reversal rate. Clerk's Office, U.S. Court of Appeals for the Ninth Circuit.

10. ¹⁰ Commentary to Recommendation 18, "Circuit Size and Workload," Proposed Long Range Plan for the Federal Courts, Committee on Long Range Planning of the Judicial Conference of the United States (March 1995, 2d printing), at page 42.

11. ¹¹ See Meador, Enlarging Federal Appellate Capacity Through District Level Review, December 1996, presented to the 1996 American Bar Association's Appellate Judges' Conference (hereinafter, "Meador"); see, e.g., Carrington, The Function of the Civil Appeal: A Late Century View, 38 S.C.L. Rev. 411 (1987) (hereinafter, "Carrington"); see also Hufstedler & Hufstedler, Improving the California Appellate Pyramid, Los Angeles Bar Bulletin 275 (1971); Hufstedler, California Appellate Reform -- A Second Look, 4 Pacific L.J. 725 (1973).

12. ¹² Between 1891 and 1911, some circuit courts which included one or more district judges continued to function until fully phased out. Act of March 3, 1911, Pub L. No. 61-475, 36 Stat. 1087.

13. ¹³ See, e.g., Berch, The Bankruptcy Appellate Panel and Its Implications for Adoption of Specialist Panels in the Courts of Appeals, in Restructuring Justice 165 (A. Hellman ed. 1990).

14. ¹⁴ See Carrington supra, at 432-34; Meador supra, at 5.

15. ¹⁵ See Meador supra, at 3.

16. ¹⁶ See Carrington supra, at 432-34.

17. ¹⁷ See e.g., Meador supra, at 6.

18. ¹⁸ See, e.g., Lay, A Proposal for Discretionary Review in Federal Courts of Appeals, 34 SW L.J. 1151, 1155-58 (1981) ("Judge Friendly some time ago recommended discretionary review in administrative proceedings. . . . His reasoning is that one appeal of right is adequate to correct errors of law committed by the agency, especially considering the narrow and limited standard of review for reviewing agency action.").

19. ¹⁹ See Appendix Table 1.

20. ²⁰ Id.

21. ²¹ See Appendix Table 2.

22. ²² Id.

23. Commission on Revision of the Federal Court Appellate System, The Geographical Boundaries of the Several Judicial Circuits: Recommendations for Change, 62 F.R.D. 223 (1973) ("Hruska Commission").

24. ²⁴ See Appendix Table 4.

25. ²⁵ See Cal.Rules of Court 29.5: Questions of state law certified by federal appellate courts and other courts.

26. ²⁶ Hruska Commission Report supra, at 238.

27. ²⁷ See Appendix Table 5.

28. ²⁸ See Appendix Table 6.

29. ²⁹ See Appendix Table 7.

30. ³⁰ Based on 1997 case filings, the filings per judge in a northwestern circuit would be approximately 226 cases per year, while the ratio in a middle circuit would be 356 cases and the ratio in a southern circuit would be approximately 328 cases. See generally Appendix Table 8.

31. ³¹ See Appendix Table 9.

32. ³² See Appendix Table 11.

33. ³³ See Appendix Table 10.