I. INTRODUCTION

The United States Department of Justice appreciates this opportunity to offer its perspectives on the federal appellate system. The primary purpose of this submission is to provide information about the Department's experience as a litigant in the federal courts of appeals and its views as to whether there is a need for any restructuring of the federal appellate system. The United States is the most frequent litigant in the federal courts, involved in more than 40% of cases in the courts of appeals.⁽¹⁾

The questions the Commission posed in its announcement of public hearings are broad, important, and recurring. Questions relating to the structure of the federal courts of appeals have been considered many times since those courts were first created in 1789. Various commissions and panels have advanced a

multitude of proposals over the years, ranging from moving circuit boundaries to adding appellate tiers to creating new, specialized courts.

Because any significant restructuring of the federal appellate court system is likely to be disruptive, we believe that the rationale for such a modification should be compelling. Those seeking reform should bear the burden of demonstrating not only that a pervasive problem exists, but also that the benefits of any proposed change outweigh the costs.

In general, we believe that the current federal appellate system functions well. Although the system has some problems, in our view those problems do not presently appear to be sufficiently severe or intractable to justify wholesale structural change, including the division of the Ninth Circuit or any other circuit. We do believe, however, that steps can and should be taken within the existing structure to improve the operation of the courts of appeals.

In Part II of this submission, we set forth general principles that we believe should be followed in developing recommendations. In Part III, we discuss our concerns about restructuring the federal appellate system, and provide more specific comments on the issues of dividing the Ninth Circuit and specialized courts. Finally, in Part IV, we discuss the Department's experience litigating in the federal courts of appeals and make suggestions for reforms that could be implemented within the courts' current structure.

Before turning to these segments, we note that in preparing this submission we have operated at somewhat of a disadvantage as we do not yet have a good idea of the types of issues, problems and potential solutions that the Commission is considering. We strongly urge the Commission to issue recommendations in proposed form and allow for comment, before submitting a final report to Congress. We believe that even a short comment period will assist not only the Department, but the public at large, in providing the Commission with helpful input.

II. PRINCIPLES FOR DEVELOPING RECOMMENDATIONS

As the Commission takes a current look at the federal appellate system, it should first identify and define the specific problems it seeks to solve and then develop solutions carefully tailored to the magnitude of those problems. We urge the Commission to keep several principles in mind while accomplishing these tasks:

First, any structural changes to the Federal appellate system should be premised on the need to remedy clearly identified and persistent problems, and not be driven by dissatisfaction with the substantive law of an existing circuit. In short, we hope that you would agree that the focus of such changes should be on structure and procedures and not on the particular judges that sit on a given court at a given time.

Second, in determining the magnitude of specific problems, particularly those that are related to judicial workload, it must be kept in mind that the circuit bench has faced a significant vacancy rate for much of the last decade. For example, in the Ninth Circuit, the vacancy rate, which currently is 25%, has been as high as 35%. Other circuits, too, have had to cope with unfilled positions; for example, with five vacancies among its thirteen active seats, the Second Circuit currently is experiencing a 38% vacancy rate. Thus, the period of time to which the Commission is likely looking for information about circuit performance has been affected by significant judicial staffing issues.⁽²⁾

Third, the appellate court system has an impact on a range of people and interests. In determining what recommendations to make, if any, the focus should be on how well the system works not only for litigants and judges, but also for the public at large. In particular, we believe that it is important that any proposed changes be viewed in terms of maximizing appropriate access of the public to our justice system. Conversely, any solution that promotes efficiency by limiting access to the courts should be carefully scrutinized to ensure that fundamental legal protections are preserved.

Fourth, any examination of court structural issues should not proceed from the assumption that there is some ideal, absolute size of a circuit, either in terms of judges or geography. How well a circuit functions results from a range of factors, of which size is only one. Any proposed solutions must fairly balance these various factors, which sometimes are competing. For example, while creating a number of smaller circuits might promote intracircuit decisional uniformity, such a structure would likely increase the number of unresolved intercircuit conflicts.

Finally, to the extent that there is a focus on the Ninth Circuit, that circuit should not be viewed in isolation. The operation of the Ninth Circuit should be considered in the context of the other circuits and the system as a whole.

III. COMMENTS ON STRUCTURAL CHANGE IN THE FEDERAL COURTS OF APPEALS

The Department of Justice does not believe that any restructuring of the federal appellate courts is required at this time. As discussed below in Part IV, the Department's experience is that the courts of appeals generally are functioning effectively. Although Department lawyers have experienced some problems in particular areas, no problem is so large or consistent as to warrant major restructuring. The federal appellate system handles approximately 52,000 filings and a comparable number of dispositions per year. In a system that size, perfection in operations is not possible.

This is not to say that the operation of the courts of appeals cannot be improved. However, the magnitude of solutions should be in proportion to the magnitude of identified problems. Thus, we strongly urge that non-structural and tailored approaches of the type discussed below in Part IV be implemented and evaluated.

An important threshold step is to fill all the vacancies in the federal courts. Without a full complement of judges, it is difficult to determine effectively how well the courts can function within the current structure.

Although the Department does not here address the many proposals for restructuring the courts of appeals, we do want to raise our concerns about two approaches that frequently have been raised.

A. The Department Does not Believe Circumstances Warrant a Split of the Ninth Circuit

The Department's view that no general structural change in the appellate court structure is warranted extends to the question of whether the Ninth Circuit should be divided. In our experience, problems that do exist in the Ninth Circuit, or any other circuit, do not justify a change in boundaries.⁽³⁾ Indeed, the large number of vacancies on the Ninth Circuit in particular has made it difficult to determine the extent and depth of any other problems with that circuit, and their potential solutions. And, the problems identified by Department lawyers would likely be ameliorated by steps far less drastic than a split of the Ninth Circuit. Thus, in the Department's view, the case for splitting the Ninth Circuit has not been established.⁽⁴⁾

B. The Department Opposes Creation of Any New Subject Matter Courts

The Department also disfavors any proposal to create additional specialized courts of appeals with limited subject matter jurisdiction. Our experience with existing specialized tribunals, such as the United States Court of Appeals for the Federal Circuit, indicates that such courts do have their place in the federal system. Nonetheless, we believe that proposals for subject-matter courts should be analyzed on a case-by-case basis and should not be viewed as a panacea for easing appellate dockets.

Substantive areas of the law do not exist in a vacuum. Indeed, a strength of our appellate system is that it allows generalist judges to draw upon their expertise in a full range of legal matters and apply the lessons they have learned to the development of the law in a specialized area. There is a great risk that judges of a highly specialized court might lack or lose this capacity and that such a court's insularity could contribute to unwarranted divergence of the specialized body of law from the mainstream of legal development. In addition, localizing jurisdiction in one court eliminates the benefit of having multiple circuits consider an issue and thus allowing the law to develop fully. Nor is it clear that severing any one area of the law from the docket of the existing courts of appeals would have a significant impact on their caseload -- even key categories of cases, such as social security cases, account for only a few percentage points of the appeals filed each year. Indeed, severing narrow classes of cases from the courts of appeal might generate increased litigation over the likely fuzzy boundaries between general federal jurisdiction and that of the specialized court.

IV. SUGGESTIONS FOR NON-STRUCTURAL IMPROVEMENTS

In the course of preparing this submission, information was sought from Department components with attorneys appearing in the courts of appeals.⁽⁵⁾ Because Department attorneys practice in different circuits and handle different types of cases, their experiences have not been totally uniform. Although the Department has not collected statistically significant data, we informally surveyed all relevant Department components about their lawyers' experiences concerning the following: the existence of and resolution of intracircuit conflicts; the extent to which intercircuit conflicts are adequately resolved; the timeliness of circuit decisions; the use of unpublished opinions (e.g., whether opinions are being published in appropriate cases); the opportunity for oral argument (whether the criteria for granting it appear to be appropriate); the staffing of panels (with district or visiting judges); the use of case management techniques (e.g., summary calendars, use of staff attorneys, potential use of magistrates, ADR); and the use of technology. Input also was sought on the question of perceived need for various types of structural changes.

Although the experiences of Department attorneys have varied, and concerns were raised in certain areas, no identified problem or concern rises to a level that would justify major restructuring of the federal courts of appeals at the present time. Indeed, it was notable that the information provided by our attorneys did not reflect systemic difficulties, but rather identified concerns of a more localized or limited scope, many of which are described below. Those difficulties would not necessarily be remedied by restructuring the system. This is not to suggest, however, that the federal appellate system cannot be improved. In fact, there are changes that can be made within the existing structure that should be implemented and evaluated before any structural changes are undertaken.

In the following sections, we will briefly set out some of the issues relevant to subjects that might be considered by the Commission, discuss the Department's experience, and suggest reforms that might be implemented within the existing structure.

A. Consistency of Decisions

One of the basic tenets of American jurisprudence is that federal law should be applied as uniformly as possible within and across circuits. It is particularly important to the Department of Justice that essential elements of federal law be interpreted consistently regardless of the location of the court or composition of the judicial panel.

The existence of inter- and intracircuit conflict among case decisions is not easy to measure. In some situations, cases may set out clearly different legal standards or statutory interpretations. In others, the lines are sufficiently indistinct to make it difficult to determine whether one case outcome really is inconsistent with another. Relatively little empirical research has been done on this issue, either at the intercircuit or intracircuit level. For the most part, however, that research has not suggested a serious problem.⁽⁶⁾

1. Intracircuit conflict

A range of factors may affect a circuit's ability to keep its jurisprudence internally consistent. The number of decisions being issued, judges' workloads, how well judges know one another's views, the extent to which they respect those views, the degree to which the circuit's internal processes value consensus and/or notice, the extent to which decisions are published, and the circuit's willingness to use en banc procedures are factors that can affect consistency of decisions within a circuit.

In most circuits, the Department's lawyers have encountered few problems with intracircuit conflict. Greater concern was expressed about consistency within the Ninth Circuit, and Department lawyers urged consideration by that Circuit of ways to minimize intracircuit conflict, including more effective use of en banc procedures. Department lawyers also expressed concern about the infrequency of en banc review in the circuit courts generally.

En banc review is an important mechanism for establishing the legitimacy of circuit law. It is a way to ensure that a circuit's decisions are consistent, and have the imprimatur of the circuit bench as a whole. It is a resource-intensive procedure in the short run, requiring a considerable amount of judicial resources. In the long run, however, en banc decisions have the potential to reduce litigation to the extent that they clearly state the law of the circuit and eliminate possible internal conflicts among circuit panel decisions.

As a matter of internal Department of Justice procedure, the Solicitor General authorizes the seeking of en banc review in only a very small percentage of cases in which the federal government loses in the courts of appeals. We urge the courts of appeals to be more receptive to requests for en banc hearings.

In addition to the more generally applicable concerns about the frequency of en banc review, some concern was also expressed about the Ninth Circuit's en banc procedures in particular. The Ninth Circuit has exercised the option Congress provided to use en banc panels of less than the full membership of the circuit. Its rule permits en banc proceedings using a total of 11 judges, less than a majority of the court. Even so, the Ninth Circuit hears cases en banc quite infrequently. To encourage greater use of its discretion to rehear cases en banc, we suggest that the Commission consider whether the Ninth Circuit should receive a dispensation from the statutory requirement that a majority of the active circuit judges must vote in favor of a rehearing en banc. As under the Supreme Court's certiorari rules, this change would permit a strong minority to require en banc review, and thus could facilitate the availability of such review. At the same time, to increase cohesiveness and collegiality, we encourage the Ninth Circuit to consider expanding the number of judges on the en banc panels -- unless to do so would decrease the number of en banc rehearings the Circuit is prepared to grant.

In addition to more effective use of en banc review, we urge all courts of appeals to use other mechanisms to reduce intracircuit conflict. For example, circulating decisions among the judges of the circuit before publication may alert judges to potential intracircuit conflicts. In addition, in some circuits, circuit staff review panel decisions for potential conflict with other circuit decisions, and notify the panel. In others, staff may alert panels that similar issues are involved in cases before them. These types of procedures, aimed at preventing inadvertent conflicts among panels of the same circuit, should be used in all circuits.

2. Intercircuit conflict

As noted above, the federal government has a particular interest in having the law applied as uniformly as possible across the country. For federal agencies seeking to apply and enforce regulatory programs consistently, inconsistent interpretations of law have the potential to undermine public confidence in their activities. At the same time, of course, we recognize the benefits of allowing percolation of issues across the courts of appeals, and we respect and have confidence in the Supreme Court's role as arbiter of intercircuit conflicts. Thus, while circuits should strive to be consistent with each other, if they choose not to be, it should be by design after thoughtful debate, and not by inadvertence.

While intercircuit conflicts sometimes are inevitable and often provide indication of the need for the Supreme Court to review an issue, we generally believe that they should not be entered into lightly. Department lawyers did not identify intercircuit conflicts in the current appellate system as a problem that has risen to a level the system could not accommodate. However, we suggest that courts of appeals use procedures to reduce the possibility that they will go into conflict with another circuit on a ground that is not generally supported by the circuit as a whole. For example, the Third, Fourth, and Seventh Circuits use a process where a panel decision that would bring the circuit into conflict with another court of appeals is circulated as a draft to all of the active judges on the circuit. All circuits should be encouraged to use such a process.

We also note that recent proposed amendments to Federal Rule of Appellate Procedure 35 (En Banc Determination) expressly recognize that intercircuit conflict can make a case sufficiently important to justify en banc proceedings. The Department hopes that, if the rule does become final, circuits will embrace the spirit of the rule.

B. Timely Resolution of Cases

Delay in the resolution of cases can have a significant negative effect on the parties involved, on other litigants waiting either for a ruling or for court resources, and on the public's confidence in the justice system. At the same time, placing too high a premium on speed may jeopardize parties' ability to present the case, may inhibit considered development of the law, and may adversely affect the public perception of justice.

Given the size of the Department's caseload, it is not surprising that the Department's lawyers have encountered problems with delay in particular instances in most circuits. For the most part, however, the Department's lawyers expressed no serious concerns about the speed of case resolution in any circuit.⁽⁷⁾ In many circuits, the Department has had fairly good experience with requests to expedite cases.

While the Department's experience does not suggest that the Ninth Circuit has an intolerable problem with delay, it is among the slower circuits in terms of case resolution. However, some or all of this delay may well be attributable to the current vacancies on that court. Moreover, our lawyers have found that the Ninth Circuit has improved its case disposition time in recent years.⁽⁸⁾

C. Form of and Access to Decisions

The form in which a court presents its decisions involves two issues: first, the depth in which issues are addressed; second, whether or not a decision is published.

The degree to which a judge explains his or her reasoning in rendering a decision significantly affects the parties' understanding of the outcome of the case. It also has an impact on other litigants' understanding of the law, the value of the decision as precedent, and the public's perception of whether justice has been served. Of course, there are situations in which it is not an efficient use of judicial resources to issue lengthy opinions. Certain cases may, for example, involve primarily factual issues or relatively settled legal issues, or have significance only to the parties themselves. For the most part, Department lawyers did not express significant concern about the way in which summary opinions are being used in any circuit.

Whether a decision is published affects its accessibility and potentially its precedential value. These, in turn, affect the development of and the public's understanding of the law. Department lawyers expressed some concern about the courts' use of unpublished opinions in certain cases, particularly those in which the court either resolved a recurring issue, enunciated a new legal principle, or arguably took a position creating an intracircuit or intercircuit conflict. We do not have statistics indicating the frequency of such unpublished opinions, but anecdotal evidence indicates that such opinions do exist.

The Department is concerned that the courts of appeals do not have uniform rules on the citation and/or precedential value of unpublished opinions. The lack of such rules adds to confusion about the state of the law. We urge the development of such rules.

Department attorneys also noted a general concern about the availability of unpublished opinions. The availability of unpublished opinions, on computer databases or otherwise, varies from case to case and from circuit to circuit. The lack of uniform availability of decisions poses serious problems for litigants in all circuits by creating confusion about what the law is and where it can be found. Several circuits do post their opinions on the Internet or a comparably accessible database. We recommend that all circuits do so. Moreover, we support development of a publicly available database, with an appropriate media-neutral citation system, for long-term access to all federal judicial decisions.

D. Oral Argument

Historically, presenting argument orally has been an integral part of practice before the federal courts of appeals. Oral argument provides litigants a chance literally to be heard by the judges deciding their case. It offers the opportunity to respond to judges' questions and concerns, and may increase the perception that a case has received appropriate attention. On the other hand, oral argument requires significant judicial resources. Moreover, not all cases warrant oral argument, because the issues may not be sufficiently complicated or because the appeal may lack merit.

We asked Department attorneys whether they perceived that the opportunity for oral argument was being made available in appropriate cases. Our attorneys raised no serious concerns about the availability of oral argument in any of the circuits, although some concern was expressed in several circuits about oral argument being granted in cases that do not warrant it. This concern may be remedied by pending amendments to Federal Rule of Appellate Procedure 34 (Oral Argument) that would offer parties the opportunity to explain why oral argument should or should not be heard. Department lawyers also expressed concern about inadequate notice of cancellation of oral argument, resulting in unnecessary expense, travel and effort. We urge courts to take steps to address this problem.

E. Staffing Appellate Panels with Non-Circuit Members

The shortage of available judges has meant that appellate panels often include judges who are not members of the particular court of appeals in which the case is pending (non-circuit judges). Thus, a panel may include a circuit court judge visiting from another circuit, a district court judge (usually from within the circuit), or both.

While non-circuit judges may bring a fresh perspective to an issue, their use can raise issues of whether all judges on a given panel are adequately knowledgeable about the applicable circuit or state law, or whether a decision handed down by a panel containing non-circuit members would be perceived as lacking legitimacy as a statement of circuit law. On the other hand, the realities of handling the caseload, particularly where there are unfilled vacancies, often require the use of non-circuit judges to staff panels in order to avoid extreme delay in resolving cases.

Some Department attorneys expressed concern that excessive use of non-circuit judges on panels could undermine collegiality and the legitimacy of decisions as the law of the circuit. The participation of more than one non-active circuit judge on a panel also is of some concern. On the other hand, some found that the presence of district judges on panels was useful, because it provided the opportunity to view cases from the perspectives of both benches.

F. Alternative Dispute Resolution Programs

Most circuits have implemented some type of mechanism, typically known as an Alternative Dispute Resolution (ADR) program, for resolving cases with minimum use of judicial resources. While not appropriate for every case, in many cases ADR not only benefits the parties involved, but also permits resolution of a portion of the docket and leaves resources to address other cases. It also may have less tangible results, such as reducing contention among parties and increasing the public's respect for and confidence in the nation's system of resolving cases.

In the Department's experience, the Ninth Circuit's ADR program is particularly helpful to litigants and may serve as a good model for other circuits. That program resolves a significant number of appeals, thereby preventing delay both in the cases it handles and in other cases that must be litigated. It is staffed with well-qualified and effective mediators and conference attorneys. The court has given the program substantial flexibility, and the program is designed not to slow down the decisional process. Even when settlement is not possible, the conference attorneys are helpful in assisting the parties with case management issues such as briefing and tracking for the case.

The Department's experience with the case settlement programs in other circuits varies somewhat. The D.C., Fourth, Sixth, Tenth, and Eleventh Circuits are considered to have highly effective programs. ADR programs in other circuits have considerable promise.

Because ADR programs can help resolve cases effectively, we urge that each circuit commit adequate support for such a program. In all circuits, we suggest that courts be active in publicizing the availability of the ADR programs and in publishing the criteria considered by the conference attorneys for selecting a case for ADR. In addition, ADR mediators and conference attorneys could benefit from additional education about the approval process and settlement authorities within the federal government, including statutory constraints on the settlement authority of trial attorneys of the Department of Justice and its client agencies.

G. Use of Technology

Currently, the federal courts of appeals do not make significant use of automated systems in the conduct of their business. As part of its implementation of the Long Range Plan for the Federal Courts, the Administrative Office of the U.S. Courts outlined a plan for automating the federal courts, including the courts of appeals. Automation should take place in two main areas: (1) automation of the case management systems of the courts themselves, thereby improving access to decisions, statistics, and other information; and (2) automation of communications between the courts and litigants, such as the use of electronic filing.

The Department of Justice fully supports and encourages an increased use of automation in both areas, and is actively participating in its development. In our experience, the use of automation can streamline the judicial process for all involved, allowing better use of judicial resources and increased access to the courts by litigants and the public.

The Department does have several concerns about how automation is accomplished. First, the transition from a paper system to an electronic one implicates substantive legal and policy concerns that must be fully explored and resolved. Second, in part due to the legal and policy concerns at stake, it is imperative that the courts' systems be developed in cooperation with litigants and attorneys who will be using them, including the Department of Justice. It also is important to ensure that any use of technology does not disadvantage or prejudice those litigants and members of the public who lack the necessary access to technology. For such cases, alternative arrangements should be available. We urge the judiciary to take all of these concerns into account in developing automation systems for the courts.

We also encourage prompt consideration of issues relating to posting court records on the Internet. We recognize that there are privacy and other issues that must be resolved, and urge that a process for addressing those issues be developed in the near future, with appropriate consultation with litigants and the public.

H. Uniformity of Appellate Rules of Procedure

The Federal Rules of Appellate Procedure were developed to promote uniform practice across the country. Over the years, however, an increasing amount of variation has crept into the procedures governing the individual circuits. This variation causes significant inconvenience and wasted resources for litigants as they endeavor to comply with the multitude of requirements.⁽⁹⁾

The lack of uniformity of procedural rules across the circuits has a particular impact on litigants that appear in multiple circuits, including the Department of Justice. Department lawyers expressed concern about the non-uniformity of these rules.⁽¹⁰⁾

We recognize that the ability to experiment can be useful in some contexts. However, the procedures in the courts of appeals should be as uniform as possible. There is little justification for differences in rules governing brief content, addenda and filing procedures, much less margins and font sizes. Local rules of procedure should be developed only when there is a clear reason to do so.

The Rules Committee process has identified the proliferation of local rules as a serious problem, and in recent years has made major efforts towards reversing the trend. The recent proposed amendments to Federal Rule of Appellate Procedure 32 in particular are a significant stride in the right direction. If and when those amendments become final, we urge the judiciary to ensure that the spirit as well as the letter of that rule serve as a guide for future circuit court activity in this area.

In addition, circuit courts should ensure that up-to-date versions of the applicable rules and other requirements are readily accessible to litigants, on-line (via the PACER system and the Internet) and otherwise. Finally, court staffs should be well-trained to respond to litigants' efforts to ensure that they are complying with the rules.

V. CONCLUSION

Unless a compelling case can be made that structural change will improve the functioning of the federal courts of appeals, the federal appellate system should not be restructured. In the Department of Justice's experience as the most frequent and largest litigant in the appellate courts, no such case has been made. Although the current system does not work perfectly, its problems do not justify structural change. The Department of Justice does, however, suggest implementation of nonstructural reforms to improve the operations and the administration of justice in the federal courts of appeals.

June 1, 1998

1. See Administrative Office of the U.S. Courts, Judicial Business of the United States Courts, 1997 (hereafter 1997 AO Report), at Table B-7.

2. Moreover, Congress recently enacted legislation that may reduce the appellate caseload in future years. The Prison Litigation Reform Act, for example, already may be reducing the number of prisoner filings. See Chief Justice Rehnquist, 1997 Year-End Report on the Federal Judiciary, The Third Branch, January 1998 (Administrative Office of the U.S. Courts)(stating that "monthly civil rights filings by prisoners decreased 46 percent from April 1996 to February 1997.")

3. ³Nor does there appear to be a groundswell of concern among other litigants and/or judges. This is in marked contrast to the situation that existed prior to the split of the Fifth Circuit. The Fifth Circuit was split only after almost twenty years of debate and experimentation with alternate solutions. When the decision to split finally was made, all judges on the court and most litigants supported it. See Deborah J. Barrow and Thomas G. Walker, A Court Divided, Yale University Press 1988.

4. In any case, in no event should a state be split between two circuits. To the extent possible, federal rights and responsibilities should be the same for all citizens within a state. Similarly, the Commission should be sensitive to the fact that a change in boundaries could affect not only states, but also Native American tribes.

5. The Department has more than 9100 attorneys, of whom about 7500 are in litigating offices. Department attorneys appearing in the courts of appeals are from the 94 United States Attorneys' Offices and from the appellate sections of the Department's Criminal, Civil, Civil Rights, Antitrust, Tax, and Environment and Natural Resources Divisions. They represent the United States and its agencies as both appellant and appellee.

6. See Federal Judicial Center, Structural and Other Alternatives for the Federal Courts of Appeals, 1993, at ch. IV, V; Arthur Hellman, By Precedent Unbound: The Nature and Extent of Unresolved Circuit Conflicts, 54 U. Pitt. L.R. 693 (1995).

7. Some concern was expressed about circuits trying to reduce delay by requiring overly-expedited briefing schedules.

8. ⁸The Department's experience in the Ninth Circuit is generally consistent with data from the Administrative Office in this regard. See Administrative Office of the U.S. Courts Judicial Caseload Profile for the Ninth Circuit for 1997.

9. It should be noted that not only litigants' resources are consumed in this effort. Clerks' offices expend resources ensuring that litigants have complied with the myriad rules. They must also respond to inquiries by litigants trying to keep up with all of the relevant requirements.

10. See, e.g., Part IV(C) above, discussing the lack of uniformity of rules for the citation of unpublished opinions.