TO: Appellate_Commission_Comments@ao.uscourts.gov

FROM: Jerome J. Shestack <jshestack@wolfblock.com>

SUBJECT: Tentative Draft

To the Commission on Structural Alternatives:

While serving as President of the ABA earlier this year (I am currently the Immediate Past President), I appointed a Committee consisting of John Frank, Lawrence Fox and myself which prepared the statement that was endorsed by the Board of Governors of the ABA and presented to your Commission by Joanne Garvey.

That statement concluded that there is presently no evidence of dysfunction in the courts of appeals and that if such dysfunction should exist, "it can be remedied by the prompt filling of vacancies and the improvement of internal procedures and processes of the circuits."

Professor Charles Alan Wright has written to you commenting on the Tentative Draft Report of October 1998. As Professor Wright noted, the particularly divisional structure that the Tentative Draft proposes goes too far in the direction of making the divisions of the Ninth Circuit independent entities and that it diminishes the role of the Ninth Circuit as a single court to interpret and apply federal law in the western United States.

In particular, dividing California appears to be ill advised on a number of counts, including the creation of serious problems of conflicting interpretation of California law, not as easily resolved as some of the advocates of division have contended.

I agree with the changes recommended by Professor Wright to have the Ninth Circuit retain its adjudicative function as it now has and to simplify the administrative function of the divisional structure.

Apart from the inadvisability of dividing California, I endorse the changes recommended by Professor Wright, namely: (1) give stare decisis effect throughout the circuit to decisions of a division panel; (2) drop the idea of divisional en banc courts and of a Circuit Division; and (3) retain a circuit wide en banc court, with power to rehear any case decided in a division.

Respectfully submitted,

Jerome J. Shestack