Comments to the Tentative Draft Report of the Commission on Structural Alternatives for the Federal Courts of Appeals

Submitted by Steven H. Goldblatt, Professor of Law and Director of the Georgetown University Appellate Litigation Program

My comments focus primarily on the significance of the declining use of "traditional review" in the courts of appeals. The Commission has reserved comment on this issue until it completes its study of court management plans. I will also address three other aspects of the report that I think are affected by one's perception of traditional review and its importance today: 1) the Commission recommendation that Congress authorize the use of two-judge panels to decide cases; 2) the Commission recommendation that Congress authorize judicial councils to designate categories or types of cases for disposition by District Court Appellate Panels (DCAPS) subject to rules and review in the courts of appeals to be established by each court of appeals; and, 3) the Commission's apparent conclusion that publication practices in the courts of appeals are not a significant problem.

In summary, I would suggest that in the Final Report:

1) The Commission should consider a statement recognizing that the federal appellate caseload is sufficiently diverse that no single method of review is well-suited to the entire range of cases. Rather, the courts of appeals need to be flexible and capable of applying review processes that maximize both efficiency and fairness;

2) The Commission should consider a statement recognizing that the courts would be well-served by a critical comparative assessment of the different review processes that are in use today with the ultimate goal being wider adoption of the best alternatives available and ongoing research and review of new alternatives that will be proposed in the future;

3) a) The Commission should limit the two-judge panel authorization to the review of cases that will be decided without oral argument pursuant to Fed. R. App. P. 34(a);

b) The Commission should modify the two-judge panel provision to provide that opinions by two-judge panels shall not be precedential;

c) The Commission should supplement the two-judge panel provision to provide greater detail regarding its processes and to make clear that Senior Circuit Judges are eligible to sit;

4) The Commission should withdraw the DCAP proposal or modify it to limit the discretion of the judicial councils to determine the classes of cases within the jurisdiction of the DCAPS.

5) The Commission should recognize that publication practices used in the courts of appeals today are a cause for at least some concern and that further study of the problems that have been identified with these practices is needed.

1. Traditional Review and its Proper Role in Modern Federal Appellate Practice -

The Need to Recognize the Legitimacy of Differentiated Review in the Courts of Appeals

The Commission tentative draft report notes the widespread concern "that the quality of appellate decision-making may have been eroded and that there has been undue delegation of judicial work to non-judges."⁽¹⁾ The Commission has reserved commenting upon the repeated calls for more oral argument, more published opinions and less reliance on staff attorneys by the courts of appeals while it completes its review of case management, or differentiated review procedures.⁽²⁾

Some of the Commission's tentative findings support the case for differentiated review. The Commission's survey of practitioners did not reveal widespread discontent with current differentiated review practices, despite several survey questions which would have registered the strength of criticism if it existed. Next, the tentative draft report recognizes that in many courts "well-trained staff attorneys who accurately reflect the views of their courts play a major role in determining what cases will be orally argued."⁽³⁾ The Commission also explained that declining rates of oral argument "is attributable to the influx of cases involving unrepresented litigants pursuing relatively simple appeals, many of which present the same issues" and that "lower rates of oral argument and opinion publication cannot automatically be interpreted as a sign of dysfunction in the court."⁽⁴⁾

The Commission should recognize the need for innovative case management and review techniques that are flexible enough to adjust to the needs of a varied caseload.

A. Traditional and Differentiated Review Defined

Traditional review of cases that are decided on the merits⁽⁵⁾ has been aptly called the "Learned Hand model" and described as follows:

Oral argument is heard in virtually all cases. Following a thorough discussion among the judges in a face-to-face conference, one panel member prepares a draft opinion, circulates the opinion among the panel, and then revises the draft in response to their comments. The resulting opinion carefully states the relevant facts and law, and explains why the combination of the two leads to the result. The judge uses a law clerk as a research tool and sounding board, but clerks have no significant role in drafting the opinion; there is no central staff. When the panel reaches agreement on the opinion, it is published in a reporter accessible to everyone.⁽⁶⁾

Oral argument was permitted in most cases until the 1960s when caseload growth, including many pro se cases, forced the courts to reconsider their methods.⁽⁷⁾ The courts initiated review procedures to determine whether oral argument should be conducted. Today, the screening is usually undertaken after briefs are filed. The briefs are evaluated based on criteria established by the courts of appeals. Cases will be assigned for disposition either without oral argument, with limited oral argument, or with full oral argument.⁽⁸⁾ Decisions may then be announced without opinion, with unpublished opinion or with a published, precedential opinion. In 1997, 59.9% of dispositions on the merits were without oral argument and 76.5% of the decisions reached in all cases were unpublished.⁽⁹⁾ Most courts of appeals rely on significant help from central staff attorneys in screening cases and/or drafting the opinions that explain the decisions in these cases.⁽¹⁰⁾

B. The Concerns about Differentiated Review

I will be very brief in describing the concerns about differentiated review because they are well-known to the Commission and others who follow this issue. The case against differentiated review is based at least in part upon the belief that traditional review is the only proven method for deciding cases fairly and that shortcuts are a dangerous compromise on the quality and the perception of justice on appeal. Professor Lauren K. Robel recognized earlier in this debate that "discussions of the effects of caseload on the 'quality' of justice are fraught with difficulties."⁽¹¹⁾ Her assessment of those difficulties was based on assumptions that traditional review had justifications and that the "burden of proof" was put on the "adaptions" to these procedures.⁽¹²⁾ Professor Thomas E. Baker contends that "it is almost intuitive that [oral argument] should be permitted in more than half of the cases" and that despite the prevailing practice of the circuits, the denial of argument has been the subject of "sustained criticism" from the bench, the bar and academic commentators.⁽¹³⁾ Professor Jerry Goldman studied the Ninth Circuit screening program and concluded that the perception of justice for the litigants and the public may be compromised by screening.⁽¹⁴⁾

As the caseload increased dramatically in the 1970s and 80s, these concerns reached a state of alarm as the courts were forced to decide increasing numbers of cases without resort to traditional methods. Judges themselves sometimes voice these concerns, including the concern that the ever-increasing size of their caseload may force judges to delegate some of their Article III responsibilities to their assistants or their colleagues in order to stay current.⁽¹⁵⁾

These concerns cannot be substantiated empirically but there may be no empirical measure to test them. In any event, there is no evidence that the courts of appeals are systematically deciding cases incorrectly.

C. The Case For Differentiated Review

There are few who consider the trend away from traditional review to be desirable, although most writers recognize that the courts have little choice in the matter given the size of the caseload.⁽¹⁶⁾ Nevertheless, there is little in the way of hard evidence to support the claim that traditional review is needed in more cases being decided today to insure that the cases are being decided correctly.⁽¹⁷⁾ Indeed, for a variety of reasons, there is good reason to believe that traditional review is not suited to much of the caseload.

1. Pro Se Cases

As the tentative draft Report recognizes, the caseload has not just grown, it has changed, and the changes are significant, particularly the influx of thousands of pro se cases.⁽¹⁸⁾ Traditional review, to work properly, very much depends on the presence of well-matched and skilled counsel to present the case to the court. Professor Karl N. Llewellyn recognized this weakness:

But any poor handling of argument sets up roadblocks for the court as they read and feel their way into the record, and chanciness of outcome is of necessity increased by any increased difficulty in seeing and setting things straight. . . . Secondly, skill of counsel, where found on one side only, terrifyingly weights the scales of judgment.⁽¹⁹⁾

While some writers expect the courts to compensate for poor presentations by the parties, I do not believe this type of judicial endeavor is "traditional."⁽²⁰⁾ Then-Judge Scalia noted the constraints placed on a court engaging in traditional review:

The premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them. Thus Rule 28(a)(4) of the Federal Rules of Appellate Procedure requires that the appellant's brief contain 'the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on.' Failure to enforce this requirement will ultimately deprive us in substantial measure of that assistance of counsel which the system assumes -- a deficiency that we can perhaps supply by other means, but not without altering the character of our institution.⁽²¹⁾

In these passages, Professor Llewellyn and Justice Scalia capture an important prerequisite of traditional review - attorneys effectively presenting the case to the court - in order for the process to function correctly. Traditional review is not well-suited for pro se cases, but this inherent limitation was not a problem until the 1960s, as very few pro se cases were considered by the court before that time.⁽²²⁾ Changes in the scope of redressable individual rights recognized by statute and by the Constitution led to expanded use of the federal courts by a wide variety of claimants, including rising numbers of pro se litigants.⁽²³⁾ No one case is more significant in this regard than is Monroe v. Pape.⁽²⁴⁾ That decision construed 28 U.S.C. § 1983 to authorize federal causes of action for violations of constitutional and statutory rights committed by state actors, overturning lower court rulings that § 1983 only applied to actions taken pursuant to specific authority of a state statute, ordinance, regulation, custom or usage of any State. As Justice Scalia recently noted:

Monroe changed a statute that had generated only 21 cases in the first 50 years of its existence into one that pours into the federal courts tens of thousands of suits each year, and engages this Court in a losing struggle to prevent the Constitution from degenerating into a general tort law. (The present suit, involving the constitutional violation of misdirecting a package, is a good enough example.)⁽²⁵⁾

One can disagree, and I do, with the conclusion that broad § 1983 jurisdiction is unsound. I do not think, however, that one can disagree that pro se cases, in particular, prisoner cases, have had a substantial impact on the courts of appeals. Over fourteen thousand pro se prisoner appeals were filed in 1997⁽²⁶⁾ and over forty-two percent of cases terminated in 1997 were pro se cases.⁽²⁷⁾ While a pro se litigant can file something called a brief and even appear in person and argue a case, neither the brief nor the argument remotely resembles a professional presentation. Traditional review is so dependent on the presence of counsel that a denial of counsel on direct review of a criminal conviction violates equal protection.⁽²⁸⁾ Without counsel, "the indigent, where the record is unclear or the errors are hidden, has only the right to a meaningless ritual, while the rich man has a meaningful appeal."⁽²⁹⁾

It was the inability of the courts to resolve pro se cases by traditional means, not just caseload pressure, that led to the creation of the position of pro se clerk. As early as 1972, most circuits used pro se clerks to review pro se cases and submit memoranda to the judges recommending a disposition.⁽³⁰⁾ The Fourth Circuit, which has a very heavy pro se docket,⁽³¹⁾ was one of the first courts of appeals to establish a formal review process for these cases:

Preliminary processing of pro se matters now extends to several steps. The staff law clerks review the petition, which come to them on the Fourth Circuit "20-day form" The form is designed to elicit petitioner's complaint in [a] simple, comprehensible manner. The staff law clerks correspond with the petitioners and with all appropriate authorities in order to complete a satisfactory record. When the necessary information has been gathered, they proceed to develop the petitioner's contentions in a logical and effective form. This often serves, as one staff law clerk put it, as a brief for the petitioner.⁽³²⁾

A 1980 study of the use of central staff attorneys found that:

Judges uniformly agreed that pro se litigants and those whose cases are perceived as frivolous, achieving only marginal success now, would receive less without staff attorneys. The fine net through which the staff attorneys filter such cases sometimes discloses an issue of merit that the appellant did not articulate well and that would go unrecognized in the press of business in the judge's chambers.⁽³³⁾

Thus, the staff attorney in a limited but very real sense provides pro se litigants with a measure of legal guidance and a level of protection that would not exist if the court tried to review the case by traditional means.

Others have recognized the value of staff attorney screening in pro se cases:

"The development of staff attorney programs to look more closely at screening-level cases has brought to many pro se litigants the closest approximation of counsel their cases will ever receive."⁽³⁴⁾ More important is to recognize that traditional review simply does not work in pro se cases because the absence of counsel for one party makes traditional review fundamentally unfair. Thus, screening and the role staff counsel plays in that process is an alternative means of preparing and presenting a case for decision in a situation where traditional review would not work well.

Proper appreciation of the court of appeals processes and their problems has been hampered by the failure to fully appreciate the impact of pro se cases on a system that traditionally relied on the presence of counsel. A good example is the popular perception that rates of appeal have grown because litigants are generally more inclined to appeal today than they were in the past. A Federal Judicial Center study was undertaken to test the validity of this belief.⁽³⁵⁾ The study found that the rate of appeal from 1977-1987 had gone up only for certain classes of cases -- a marked increase for prisoner civil rights and non-civil rights cases and a modest increase followed by a decrease for other civil rights cases.⁽³⁶⁾ The study also noted that there was also a marked increase in the percentage of district court cases that were prisoner civil rights actions.⁽³⁷⁾ For all other civil cases the growth in the number of appeals is consistent with the growth in district court terminations.⁽³⁸⁾

This study cautioned that "freeing appeals from financial constraints may have the unintended effect of encouraging appeals that are untimely or lack merit."⁽³⁹⁾ The influx of these cases forced the courts to resort to truncated procedures "intended to permit judges to allocate their time according to the demands of the issues raised on appeal."⁽⁴⁰⁾ The study also concluded that, despite the apprehension these truncated procedures raise, "[t]hese findings suggest that the courts of appeals should retain discretion to develop procedures that accommodate the needs of diverse appellate caseloads and provide the judicial attention required for a thoughtful disposition of the issues presented on appeal."⁽⁴¹⁾

The Commission should endorse this finding that the need for flexible review techniques has been made beyond any doubt for pro se cases. These cases are not properly addressed with traditional methods, and differentiated review with the aid of staff attorneys offers a far better alternative for the court and the litigants.

2. Screening and Counseled cases

The case for screening at current or even higher levels can be made for counseled cases as well. Reliance on traditional review was appropriate when the jurisdiction of the courts of appeals was limited, the body of law largely undeveloped in many areas, and the decision to appeal was a substantial economic commitment that would not be made lightly.⁽⁴²⁾ With reversal rates running at around 25% of the cases decided, there was little reason to have the courts depart from the use of traditional methods to decide cases.⁽⁴³⁾ Today, the jurisdiction of the courts of appeals is substantially broader than it was prior to the 1960s, and the costs of filing an appeal are relatively modest. With the aid of modern technology, the costs of preparing and reproducing briefs and records are not major economic disincentives to seeking review of a substantial judgment.⁽⁴⁴⁾ Even the cost of legal representation will have little deterrent effect if the judgment is significant and if delay in reaching finality gives a strategic advantage to the appellant. Under the "American Rule" the losing party on appeal is not responsible for the winning parties' costs of representation.⁽⁴⁵⁾ While guaranteed traditional review, including oral argument, may be attractive to an appellant seeking every opportunity to undo or, at least, delay the judgment being appealed from taking effect, it also represents a significant and unwarranted burden for a party who has established on the briefs that the appeal lacks merit. For these litigants, oral argument is a needless expense.⁽⁴⁶⁾

Thus, it is not surprising that when the United States Department of Justice, a frequent appellee in the courts of appeals, commented to the Commission in June of 1998, it offered the following view regarding oral argument:

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.⁽⁴⁷⁾

Finally, it bears mention that despite screening of counseled cases, a very significant number continue to be argued to the courts of appeals each year.⁽⁴⁸⁾ In 1997, forty percent of all cases and fifty-six percent of counseled cases decided on the merits were argued orally.⁽⁴⁹⁾ Over sixty percent of non-prisoner civil cases decided on the merits were argued in each year between 1985-1992.⁽⁵⁰⁾ That the courts give the benefit of the doubt to ordering argument is indicated by the fact that while about 40% of cases decided on the merits are argued, only 23.5% of opinions filed in those same cases are published, suggesting that the courts of appeals hear argument in many cases that do not ultimately present issues of any great significance.⁽⁵¹⁾ The Commission also noted that 32% of cases litigated with counsel result in published decisions.⁽⁵²⁾

3. Concerns about Delegation of Responsibility

Many writers, including judges, raise concerns that judicial functions may be delegated when cases are decided without argument and then decided by opinions drafted to some extent by staff attorneys.⁽⁵³⁾ Safeguards, however, are built into all screening processes. Screening is conducted under guidelines set by the judges and is carried out either with the aid of staff attorneys or by the judges themselves.⁽⁵⁴⁾ A 1987 FJC study found a 15% rejection rate of staff attorney screening recommendations, a clear indication that judges are not rubber stamping screening recommendations.⁽⁵⁵⁾ Finally, screening also appears to be erring on the side of granting oral argument in close cases as evidenced by a substantial percentage of argued cases decided by unpublished opinions.⁽⁵⁶⁾

Some courts of appeals have employed other safeguards protests against losing control of the decisional process. Today, more courts use judges to screen cases, and live, face-to-face conferencing is also ensuring adequate judge participation. Thus, it would appear that screening can be adapted to reduce these risks, significantly alleviating concerns about delegation of judicial responsibilities.⁽⁵⁷⁾

4. Concerns about Unpublished Decisions

Some critics object that most opinions prepared in cases that are screened away from oral argument are also resolved with unpublished dispositions. Thus, these cases are decided without the rigor of oral argument and the conference that usually follows, and then the decision is prepared without the care that is associated with publication.⁽⁵⁸⁾ In my view this concern is better addressed with careful screening protocols, not with increased publication.⁽⁵⁹⁾ Publication has significant institutional costs associated with it beyond the cost in terms of the time spent preparing the published opinions.⁽⁶⁰⁾ Although publication imposes no obligation on the litigants in the case, the general growth of case law does place a burden on the practitioners that must keep abreast of the law and use it to advise other clients and in litigating future cases. It also places a difficult burden on the lower courts that are expected to stay abreast of controlling decisional law. The need to limit the publication of opinions was recognized well before the caseload crisis developed in the late sixties. The issue was raised as early as 1824.⁽⁶¹⁾ More recently, in 1938, the ABA adopted policy calling for the use of memorandum opinions in cases "where no new principle or novel application of law is involved, and the decision if fully and clearly controlled by certain statutes or cases, an effort should be made to limit the opinions to a brief summary of the facts followed by a reference to such statutes or cases."⁽⁶²⁾ The issue was considered by the federal courts of appeals starting in the 1940's and ultimately led to the Judicial Conference directing that the courts of appeals establish publication standards to be applied in all cases.⁽⁶³⁾

Finally, the fear that unpublished opinions will be crafted with little involvement from the judge ignores the fact that if cases are screened appropriately, these opinions should be relatively simple and not warrant a great deal of the judges' time. Courts of appeals are also developing methods to insure greater involvement of at least one judge in the drafting process.⁽⁶⁴⁾ The Tenth Circuit uses a mentoring program that assigns one judge the responsibility to review the draft opinion with the staff attorney.⁽⁶⁵⁾

2. Critical Analysis of the Screening Processes in Use Today -

The Next Step in Improving the Quality of Screening in the Courts of Appeals

Recognizing the legitimacy and the need for screening to administer a diverse caseload (even in the absence of caseload pressures) is only a step in ensuring that the courts of appeals utilize screening methods that are fair, efficient, and accepted by the bar and the public. Today, a variety of screening techniques are in use but little has been done to critically analyze and compare them. A brief review of some of the studies that have been done demonstrates that many screening alternatives have developed over the years that deserve wider attention than they have received, and that a process whereby screening methods can be critically evaluated and compared by an appropriate committee is long overdue.⁽⁶⁶⁾

A) 1973 - Fourth Circuit Study

The Federal Judicial Center sponsored this early study of the screening practices used in the Fourth Circuit. In FY 1973 the court had four staff "law clerks" who screened 95% of the cases appealed and recommended that they be calendared for oral argument or decided without oral argument.⁽⁶⁷⁾ In 1973, half the cases appealed to the Fourth Circuit involved pro se litigants. These cases were screened away from oral argument along with approximately one third of the non pro se cases.⁽⁶⁸⁾ In screened cases, the staff law clerk would submit a memorandum analyzing the legal issues, propose a suggested per curiam or memorandum decision, and recommend a disposition for the case.⁽⁶⁹⁾ The memorandum would be reviewed by a panel of three judges.⁽⁷⁰⁾ A lead judge would review it first, approve it or make modifications and then pass it on to a second judge who would repeat the review process and pass it on to the third judge who would also repeat the process.⁽⁷¹⁾ Communication would be by telephone and letters but there would not be a conference.⁽⁷²⁾ The study tried to determine "whether the increased role of staff had any apparent effect on the judges' role in decisions."⁽⁷³⁾ While it found none, it cautioned that this was a study of relatively new procedures.⁽⁷⁴⁾

B) 1978-79 - Congressional Studies

In 1978, the Senate Judiciary Committee studied screening techniques and concluded that they were necessary to handle the caseload.⁽⁷⁵⁾ However, in 1979, upon the authorization of a third law clerk and a second secretary for courts of appeals judges, the Senate and House Appropriations Committees requested the Judicial Conference to direct that a study be made to determine the need for central staffs and whether they could be phased out.⁽⁷⁶⁾ Accordingly, the Administrative Office of U.S. Courts assigned a judicial fellow to study the operation of each central staff office. The result was a report that concluded that the central staff and elbow clerks perform different functions, and that the phase out of central staff would increase the backlog.⁽⁷⁷⁾ At the time of the survey, staff attorneys generally were utilized in screening programs and in the resolution of motions.⁽⁷⁸⁾ The study concluded that regardless of how central staff are assigned, "the basic theory is one doing the work of three," that is, the staff attorney prepares a memorandum that is used by three judges rather than having each judges' chambers do the work independently of one another.⁽⁷⁹⁾ "Whatever the function assigned, central staff attorneys contribute to a more efficient appeals process in a cost-effective and judicially-accountable way."⁽⁸⁰⁾

C) A Ninth Circuit Analysis

Professor Arthur D. Hellman, who was Deputy Director of the Hruska Commission from 1973-75 later became the Supervising Staff Attorney in the Ninth Circuit from 1977-1979. He provided a thorough analysis of the Ninth Circuit use of central staff in an article published in 1980.⁽⁸¹⁾ His experience in the Ninth Circuit led him to revise his view that staff attorneys should not write opinions, as the Hruska Commission had recommended. He concluded that in some circumstances central staff attorneys should draft opinions, particularly in cases where the alternative might be an affirmance by judgment order with no written explanation for the ruling.⁽⁸²⁾ At the time, the Ninth Circuit approach was much less reliant on dispositions without oral argument but it was developing screening techniques that allowed merits panels to rely heavily on bench memoranda prepared by staff counsel to quickly decide cases that did not merit more intensive review.⁽⁸³⁾ Professor Hellman concluded that "any departure from traditional review entails some risks. By making wise use of a central staff, the court can keep the risks at a minimum without unduly intruding on the judges' ability to give full consideration to the difficult or precedential appeals."⁽⁸⁴⁾

D) The Federal Judicial Center Studies in the 1980's

Donna Stienstra and Joe S. Cecil, two researchers at the Federal Judicial Center did three studies of case screening in the 1980's. The first study was published in 1985.⁽⁸⁵⁾ It found that eight courts essentially followed the original Fifth Circuit model which had staff attorneys reviewing all, or a portion, of briefed cases and then preparing memoranda and/or proposed dispositions in those cases that they recommended for disposition without oral argument. The cases recommended for disposition without oral argument were reviewed by screening panels that either decided the cases without oral argument or returned them to the clerk for calendaring for oral argument.⁽⁸⁶⁾ The form of review varied. Some panels convened and deliberated while in other circuits the judges conferred in writing or via telephone.⁽⁸⁷⁾ The report noted that some circuits had adopted additional protection (e.g. unanimity requirements (no dissent) to decide case without oral argument) against improper disposition without argument.⁽⁸⁸⁾

The Third Circuit was the only court of appeals which did not use staff attorneys or special panels to make screening recommendations. Rather, regular argument panels reviewed cases assigned to them and decided in advance of the argument session which cases would decided without oral argument. This report concluded that additional data was needed to "better understand the relative merits of these procedures."⁽⁸⁹⁾

The next report came in 1987, in the form of a comparative study on the use of restricted oral argument in four different courts of appeals.⁽⁹⁰⁾ Using 1986 for analysis, the data revealed that forty-six percent of cases decided on the merits in the regional circuits were decided without argument, but individual courts of appeals differed in their assessment of which cases required on oral argument.⁽⁹¹⁾ Cecil and Stienstra attributed the variation to the "beliefs of the judges" in the value of oral argument rather than the "features of the screening program."⁽⁹²⁾ Judges were concerned about the increased use of truncated procedures and differed sharply regarding the need and utility of oral argument. At the least, most judges felt that a case decided without oral argument should be decided by a reasoned, written disposition.⁽⁹³⁾

The final Cecil and Stienstra report, released in 1989, was an unusual study of the non-argument practices in the Tenth Circuit.⁽⁹⁴⁾ This report was prompted by the criticisms of the role of staff attorneys in the decisionmaking process, particularly the combination of broad responsibility they were given with little supervision from the judges.⁽⁹⁵⁾ Two courts of appeals, the Tenth and the Seventh, had developed a process that potentially addressed these concerns- most notably because the panels held conferences to decide the cases and the staff attorneys attended the conferences.⁽⁹⁶⁾ The researchers undertook an in-depth study of the Tenth Circuit procedures to allow other courts to assess their efficacy.⁽⁹⁷⁾ The study used an interview protocol with an unusual twist: Stienstra was invited to observe a non-argument conference at which the non-argument cases were decided.⁽⁹⁸⁾ The study found that the interaction between staff counsel and the judges, as well as the use of a conference procedure where the judges convened to discuss the cases with the staff counsel was perceived by judges and staff counsel to be an effective procedure that "considerably enhances the quality of the decision."⁽⁹⁹⁾ The study also found that "the procedure appears to answer many of the doubts that others have raised about non-argument decisionmaking and the role of staff attorneys . . ."⁽¹⁰⁰⁾ The interaction with staff counsel has bolstered judicial confidence in staff attorneys and made the decisionmaking process more efficient.⁽¹⁰¹⁾

This report recognized that the Tenth Circuit approach might not be suitable in larger circuits, but overall found the approach beneficial: "By convening to decide the non-argument cases and by having the staff attorneys present at the decisionmaking conference, the court found that neither quality nor efficiency need be sacrificed to the demands of the rising caseload."⁽¹⁰²⁾

E) 1989 ABA Report

In 1989, the ABA took a look at the problem through its Standing Committee on Federal Judicial Improvements, chaired by the Commission's Executive Director, Professor Daniel Meador. It issued a report entitled The United States Courts of Appeals: Reexamining Structure and Process After a Century of Growth.⁽¹⁰³⁾ The report recognized the importance of screening devices and called for them to be conceived more broadly "to include any device for separating appeals likely to be meritorious or difficult from those that are more easily resolved."⁽¹⁰⁴⁾ Importantly, the Committee recognized that:

equal justice does not require equal time for all appeals, but it does entitle the parties to the attention of a panel of judges, at least in proportion to the merit of their arguments. Effective appellate justice for the parties. . . requires judges to distinguish between cases that should receive more attention and those that should receive less.⁽¹⁰⁵⁾

The report endorsed the continuing importance of oral argument both to the parties and to the public perception that cases are being decided by the judges and not by unseen staff.⁽¹⁰⁶⁾ It suggested that one approach to this problem "would acknowledge the role of court personnel, particularly central staff attorneys, in the decisionmaking process, but open it up to examination by the parties through the adversary process of objections and argument.⁽¹⁰⁷⁾

F) 1989 Survey of the Staff Attorney's Offices

In December 1989, the Administrative Office of United States Courts' Office of Planning, Evaluation, and Statistics published a survey that collected information about the role of staff attorneys in each court of appeals.⁽¹⁰⁸⁾ This survey recommended that the Judicial Conference continue to endorse an increase in the number of staff attorneys beyond the cap set at a one-to-one ratio to the number of judges in the court of appeals.⁽¹⁰⁹⁾ It also observed that due to increases in the pro se docket, staff attorneys were providing fewer legal services to the judges than when the positions were created.⁽¹¹⁰⁾

The survey found that "the staff attorneys' involvement in the appeals process was in the preparation of cases for a judicial decision and not in the decision process itself."⁽¹¹¹⁾ The survey also concluded that it was time to appoint a committee of court personnel and assign it the task of defining "the roles, tasks, and relationships of the staff attorneys' offices in the circuit courts.⁽¹¹²⁾

G) Federal Courts Study Committee

In 1990, the Federal Courts Study Committee (FCSC), the last major Congressionally sponsored study of the courts of appeals to complete its work,⁽¹¹³⁾ barely touched on this subject. It cautiously concluded that through increases in productivity that were approaching their limit, the courts were still able to preserve the "hallmarks of our judiciary" including the ability to "grant oral argument in the cases that need it."⁽¹¹⁴⁾ The working papers of the FCSC subcommittees reveal that their poll of the judges established that "while most judges find oral argument helpful, they disagree with critics who say it is being denied in too many cases."⁽¹¹⁵⁾ Those that responded were generally satisfied with the practice in their courts and they believe that they "almost always afford argument in cases that need it."⁽¹¹⁶⁾

H) 1991 Oakley Study

In 1991, Professor John B. Oakley published an article that analyzed the screening procedures for all thirteen circuits and thoroughly evaluated data from 1982-1988 made available by the Ninth Circuit to assess that circuit's screening program.⁽¹¹⁷⁾ Oakley concluded from that during the study period the Ninth Circuit "made cautious use of screening for such a busy court."⁽¹¹⁸⁾ His survey of other circuits, which in some instances was based on telephone conversations with staff attorneys, concluded that there were seven different screening methods in use in the courts of appeals.⁽¹¹⁹⁾ Professor Oakley also noted a trend in several circuits to use oral presentations by staff attorneys to assembled screening panels as a supplement to or an alternative for considering detailed written screening memoranda.⁽¹²⁰⁾

Professor Oakley was critical of the developing trend of screening counseled cases and denying oral argument to attorneys who wished to appear before the panel.⁽¹²¹⁾ He also voiced concern that there was a trend towards an inquisitorial process that utilized staff attorneys and not counsel to decide the cases.⁽¹²²⁾

These various studies of screening demonstrate that, while screening has been examined any number of times, calls for critical comparative analysis of the many variations of screening that have developed have not been heeded. There is ample reason to believe that some courts of appeals could benefit from adopting screening practices utilized in other courts. As the Commission was told at its hearings, in some circuits, screening may cut too deep. Chief Judge Hatchett of the 11th Circuit offered testimony before the Commission in Atlanta stating that he was uncomfortable with the 70% disposition rate for criminal cases without argument.⁽¹²³⁾ Judge King of the Fifth Circuit voiced concern to the Commission that there may be risks with large screening dockets, stating:

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 or the writing judge's proposed opinion. And the problem gets worse if the initiating judge is under pressure and relies too heavily on the staff attorney's memo.⁽¹²⁴⁾

This type of testimony suggests that the time has come to take a closer look at screening alternatives and to consider whether there are preferred screening methods that best protect against the concerns that some cases are getting second-class consideration. Ultimately, greater standardization of screening processes may be possible. Innovative programs like that used in the Tenth Circuit appear to have developed processes that genuinely improve the quality of screening by providing for live contact between members of a screening panel and the staff attorney. These types of innovations deserve study and hopefully, wider implementation.

3. Two-judge Panels -The need for a more limited authorization that will assure careful and more standardized use of this new power.

The Commission anticipates that three-judge panels should continue to decide important cases, including cases of precedential value. It recommends two-judge panels as an innovation that would be used primarily to decide the cases that are currently being screened out of the traditional review process.⁽¹²⁵⁾ The proposed statute that would authorize two-judge panels, however, contains none of these limitations.⁽¹²⁶⁾ It provides that by rule any court of appeals may provide for the disposition of cases "through panels consisting of two judges, both of whom shall be judges of the court."⁽¹²⁷⁾ Thus, each court of appeals is free to decide which types cases it will decide by two-judge panels. This proposal leaves many significant questions to the individual courts of appeals:

Can two-judge panels filed precedential opinions?

Must two-judge panels hear oral arguments subject to the qualifications in Rule 34 of

the Federal Rules of Appellate Procedure?⁽¹²⁸⁾

Are senior circuit judges qualified to sit on two-judge panels?

How many votes are needed to obtain rehearing from a two-judge panel?

What happens if a two-judge panel divides evenly?⁽¹²⁹⁾

I think the Commission's assessment of the value of two-judge panels is correct and should be reflected in the proposed statute. Most importantly, the Commission sees cases that are "clearly" controlled by "well-settled" precedent to be the likely candidates for two-judge review.⁽¹³⁰⁾ I think the Commission should incorporate this expectation into the text of the proposed statute by providing that two-judge panels are authorized to decide cases that have been determined to be appropriate for disposition without oral argument pursuant to Rule 34(a) of the Federal Rules of Appellate Procedure. Accordingly, two-judge panels would be authorized to refer cases back to the clerk if one judge determines that the case warrants three-judge review. Also, the proposed statute should make clear that two-judge panels should not be authorized to file precedential opinions.

There are additional qualifications that I think are needed to justify the elimination of one judge from the decisional process. A major safeguard of every screening plan is the ability of any one judge to insist at any time before the case is decided that the case can be returned to the pool for decision with oral argument. Rule 34(a) of the Federal Rules of Appellate Procedure requires unanimity to dispense with oral argument. Thus, if any one judge believes that the case is not appropriate for screened disposition the case will get full review.⁽¹³¹⁾ Reducing the number of judges on the panel diminishes this safeguard and increases the risk that a case inappropriately referred for decision without oral argument may slip through undetected. If there is to be two-judge screened review, I believe that the Commission must address the concern that this major safeguard has been reduced by a factor of one-third. I think the answer is to incorporate two limitations on the two-judge decisional process that derive from newer screening processes in use today. Several courts of appeals have come to realize the great value of restoring the conference to the decisional process for cases decided without oral argument.⁽¹³²⁾ Accordingly, I would urge the Commission to limit its recommendation to Congress and only authorize the courts of appeals to decide cases by two-judge panels if the two judges confer in person before the case is decided. I would add one additional safeguard which I also think is justified: two-judge panels should never decide cases without any written statement of their reasoning. By requiring the two-judge panel to explain the basis for the ruling both the litigants and the public will have better assurance that the panel took appropriate care in reaching its disposition.

There are some other minor adjustments that might be made. I think the proposed statute should also make clear that senior judges of the court of appeals are eligible for two-judge assignments. I think this is what is intended but it should be clear that senior judges should qualify for these assignments. Their availability to serve will add to the flexibility that the courts of appeals need to spread their resources when the caseload is high. I cannot think of any reason why senior judges would not be fully-qualified for this task- indeed, with their years of experience they may be the best qualified judges for this task.

Finally, I recognize that the Commission believes that the use of two-judge panels is best left to the discretion of the courts of appeals, each of which faces somewhat different caseload problems. I believe that the needed flexibility can be found in a more structured proposal that also insures that there will be some consistency in the basic jurisdictional scheme for each of the courts of appeals. The report itself provides a measure of support for my view because the Commission itself has a very clear understanding of how these panels should be employed.

4. District Court Appellate Panels (DCAPS) - The Commission should modify this proposal or withdraw it.

Two-judge panels complement existing differentiated review processes and represent a logical extension of current practices. DCAPS, however, create an additional layer of review that will not substantially reduce the workload because each DCAP panel requires one court of appeals judge and all DCAP decisions are subject to some form of review by the courts of appeals and will require some percentage of these cases to be reheard by the courts of appeals. Thus, there is a real question whether DCAPs are an efficient means of reducing the workload in the courts of appeals, especially given the much simpler alternative of the proposed two-judge panels.

There are other issues that surround DCAPS that need to be considered. First, there is the question of constitutionality. The proposed statute authorizes each circuit's judicial council to specify the "categories or types of cases over which [DCAPS] shall have appellate jurisdiction."⁽¹³³⁾ This language appears to give the judicial councils considerable discretion to transfer any or all of the court of appeals' caseload to the appellate jurisdiction of the DCAPS. This delegation of authority would give the councils the power to rewrite the jurisdiction of the courts of appeals, thereby posing the question whether the judicial councils, when they act to transfer cases to the new court, are performing a function that cannot be properly delegated by Congress to a judicial body.⁽¹³⁴⁾ I think the Commission should consider the constitutional issue that may be posed, even if it ultimately concludes that the statute would be a valid delegation.

Constitutionality aside, the judicial councils could not help but attract criticism when they reshape the jurisdiction of the courts of appeals. Jurisdictional issues are highly controversial and often politically charged. Current screening practices which disproportionately affect certain categories of cases are themselves controversial although the screening decisions are reached on the merits of each case and no class of cases is automatically designated for disposition without full process. It will be an entirely different matter if a judicial council predetermines that certain types of appeals are categorically less important than other cases and transfer those cases to the DCAP.

There are also serious gaps in the DCAP proposal. The Commission indicates that these panels may "hear and decide" cases.⁽¹³⁵⁾

Is oral argument required?

Will these panels issue opinions that are binding on other DCAP judges or upon the

court of appeals if review is denied?

Will there be a DCAP panel rehearing mechanism?

What are the voting standards for court of appeals review?

Will court of appeals review be in banc or by a panel?

Finally, from my understanding of the historical origins of the DCAP proposal, it was designed, at least in part, to restore traditional review for more cases, albeit at a lower level.⁽¹³⁶⁾ The discussion in the report does not indicate whether this is the intended goal of the Commission. For reasons already discussed, I think this would be a step backwards and of little use in pro se cases.

5. Opinion Publication Practices - The Commission should recommend further study of the problems that have been identified with the current publication practices of the courts of appeals.

The Commission makes only brief reference to publication of opinion practices, stating that the intent of non-publication was to reduce costs.⁽¹³⁷⁾ The Commission also notes, in passing, that "'unpublished' opinions are increasingly accessible by electronic means and in some courts may be cited if no better precedent exists."⁽¹³⁸⁾

I would urge the Commission to either take no position on publication practices or modify its comments. The publication practices of the courts of appeals is a subject of much criticism and the fact that unpublished opinions are readily available in databases has been the subject of criticism and should not necessarily be considered desirable.⁽¹³⁹⁾ While courts of appeals may ignore these cases because they are not precedential, district courts and magistrate judges may find them persuasive and follow them.⁽¹⁴⁰⁾ Also, as the commission's finding indicate, the publication rates in the courts of appeals vary greatly, ranging from a high of 51% to a low of 11%.⁽¹⁴¹⁾ This wide disparity is troubling and should be recognized by the Commission.

Finally, I would urge the Commission to make a statement that it is inappropriate for a court of appeals to decide any case without any explanation of its reasoning. This practice cannot be justified and leaves the parties with no understanding of the basis for the holding. Efficiency is important but not so important that this practice can be justified.

1. Draft Report at 23. The Commission, of course, is well-aware of the large body of literature on this subject. The literature contains an array of recommendations that range from radical change to more cautious approaches depending on the writers' assessment of the quality of justice on appeal in the courts of appeals today. See, e.g., Martha J. Dragich, Once a Century: Time for Structural Overhaul of the Federal Courts, 1996 Wisc. L. Rev. 11; Carl Tobias, Some Cautions About Structural Overhaul of the Federal Courts, 51 Miami L. Rev. 389 (1997); Thomas E. Baker, Intramural Reforms: How the U.S. Courts of Appeals Have Helped Themselves, 22 Fla. St. U. L. Rev. 913 (1995); William L. Reynolds & William M. Richman, Elitism, Expediency, and the New Certiorari: Requiem for the Learned Hand Tradition, 81 Cornell L. Rev. 273 (1996) [hereinafter Reynolds & Richman Elitism] (calling for substantial increases in the size of the courts to handle larger percentages of the caseload by traditional means); Statement of William M. Richman, Commission on Structural Alternatives for the Federal Courts of Appeals, available at <http://app.comm.uscourts.gov/hearings/chicago/richman.htm>. See generally Thomas E. Baker, Rationing Justice on Appeal-The Problems of the U.S. Courts of Appeals (1993).

2. Draft Report at 23.

3. Draft Report at 22-23.

4. Draft Report at 22.

5. In 1997, only 50.7% of case terminations were on the merits. See Administrative Office of the United States Courts, Annual Report of the Director 81 (1997). By way of comparison, in 1957, 73.5% of case terminations were on the merits. See Administrative Office of the United States Courts, Annual Report of the Director 160 (1957).

6. Richman & Reynolds Elitism, supra note 1, at 278 (footnote omitted).

7. See, e.g., Ruggero J. Aldisert, Winning on Appeal 13 (1992) ("When I was appointed to the U.S. Court of Appeals for the Third Circuit in 1968, the court permitted oral argument in every case."). Prior to 1962 it was the Fourth Circuit's practice to have oral argument in every case, regardless of complexity. See Steven Flanders & Jerry Goldman, Screening Practices and the Use of Para-Judicial Personnel in a U.S. Court of Appeals, (Federal Judicial Center 1974), reprinted in Russell R. Wheeler & Howard R. Whitcomb, Judicial Administration: Text and Readings 241, 246 (1977).

The Fifth Circuit was the first court of appeals to systematically decide cases without oral argument. In 1969, it published several opinions explaining the process "to acquaint the Bar of this Court, the Federal Judiciary across the nation, scholars and others interested in judicial administration with the continued operation of the process of judicial screening of cases before calendaring." See Huth v. Southern Pac. Co., 417 F.2d 526 (5th Cir. 1969) (summary calendar); Murphy v. Houma Well Service, 409 F.2d 804 (5th Cir. 1969). By 1973, two other circuits issued formal opinions acknowledging and upholding their practice of refusing to hear oral argument in all cases. See United States v. Smith, 484 F.2d 8, 11 (10th Cir. 1973); NLRB v. Local No. 42, Int'l Ass'n of Heat & Frost Insulators, 476 F.2d 275, 276 (3rd Cir. 1973). These courts rejected claims by the parties that they had a right to present oral argument before the cases were decided.

8. This description is subject to much variation. The courts of appeals use a variety of screening methods, subject only to general rules regarding the denial of oral argument in Rule 34(a) of the Federal Rules of Appellate Procedure. See infra note 78 and accompanying text. The courts also screen for jurisdictional defects or possible candidates for mediation at either this stage or earlier in the course of the appeal.

9. See Administrative Office of the United States Courts, Annual Report of the Director 38, 40 (1997).

10. The Third Circuit, which did not use staff attorneys to screen and decide non-argument cases was part of a 1987 FJC study that found that the Third Circuit did not file any written opinion in over one-half of the cases decided without argument. Joe S. Cecil & Donna Stienstra, Deciding Cases Without Argument: An Examination of Four Courts of Appeals 4 (Federal Judicial Center 1987)[hereinafter Cecil & Stienstra Examination].

11. Lauren K. Robel, Caseload and Judging: Judicial Adaptations to Caseload, 1990 BYU L. Rev. 3, 57.

12. Id.

13. Baker, supra note 1, at 114.

14. Jerry Goldman, Appellate Justice Economized: Screening and Its Effect on Outcomes and Legitimacy, in Restructuring Justice 138 (Arthur D. Hellman ed., 1990). See also, Paul D. Carrington et al., Justice on Appeal 17 (1976).

15. These concerns were voiced to the Commission by Judge Carolyn Dineen King who testified before the Commission in Atlanta. See Statement of Judge Carolyn King, Commission on Structural Alternatives for the Federal Courts of Appeals (March 25, 1998), available at <http://app.comm.uscourts.gov/hearings/dallas/king.htm>. See also Richard A. Posner, Will the Federal Courts of Appeals Survive until 1984? An essay on Delegation and Specialization of the Judicial Function, 56 S. Cal. L. Rev. 761 (1983); Wade McCree, Bureaucratic Justice: An Early Warning, 129 U. Pa. L. Rev. 777 (1981).

16. Professor Robert J. Martineau, whose insights are drawn in part from his years as the Circuit Executive for the Eighth Circuit's Court of Appeals, has taken a contrarian view on many of these issues. See e.g., The Value of Appellate Oral Argument: A Challenge to the Conventional Wisdom, 72 Iowa l. Rev. 1 (1986) and Restrictions on Publication and Citation of Judicial Opinions: A Reassessment, 28 U. Mich. J.L. Ref. 119 (1994).

17. Crisis rhetoric has been used for thirty years regarding the growing caseload. The survival of the courts of appeals despite the relentless increase in the caseload suggests that the "crisis" rhetoric is unwarranted. There is much truth in the "additional statement" of Judge Cabranes, joined by three other members of the Federal Courts Study Committee that "we fear that the alleged 'caseload crisis' that is said to afflict the courts of appeals has not been adequately demonstrated." See Report of the Federal Courts Study Committee 123 (1990) (Judge Jose Cabranes joined by J. Vincent Aprile, II, Sen. Charles Grassley and (now Judge) Diana Gribbon Motz).

While the appellate courts did experience an explosive growth phase, that growth has substantially subsided in the past decade.

Average Annual Growth in Appeals Commenced

1957-1967 - 7.9%

1967-1977 - 9.2%

1977-1987 - 6.3%

1987-1997 - 4.0%

The average annual growth in the last 4 years, 1993-1997, was about 1.0%. See Administrative Office of the United States Courts, Annual Report of the Director (1957, 1967, 1977, 1987, 1993, 1994, 1995, 1996, 1997).

18. Failure to appreciate the qualitative changes in the caseload and its importance has led to misperceptions that have been difficult to expose. The Federal Courts Study Committee found that "the crisis of volume is beyond dispute . . .[t]he crisis is caused partly by an increase in district court cases but mainly by a heightened proclivity to appeal district court determinations. Report of the Federal Courts Study Committee 123 (1990). A later FJC study found this phenomenon to be limited mostly to prisoner and civil rights cases, an important distinction for purposes of evaluating the problem. See Carol Krafka, et al., Stalking the Increase in the Rate of Civil Appeals, (Federal Judicial Center 1995).

19. Karl N. Llewellyn, The Common Law Tradition - Deciding Appeals 30-31 (1960) (emphasis added).

20. Professors Reynolds and Richman argue that differentiated review denies careful assessment of the cases that most need it, those in which the briefs are "pro se, bad, or non-existent." In their view, these litigants need the benefits of oral argument perhaps more than others but they are the least likely to obtain it. See Reynolds & Richman Elitism, supra note 1, at 280.

21. Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983); accord, United States v. Cherif, 943 F.2d 692, 702 (7th Cir. 1991) ("What we have here is antithetical to the [Carducci] premise--the presentation of numerous, and for the most part completely meritless, arguments made without citation and apparently from the tops of the attorneys' heads.").

22. Many of these cases are prisoner cases. It is very hard to come up with a precise picture of the rise in prisoner appeals because of the manner in which the data has been reported over the years. See Draft Report at 16, note to Table 2-5. As late as the 1950s, 'prisoner filings' was not a recognized category that was reported separately. Chief Judge J. Harvie Wilkinson III of the Fourth Circuit conducted a rough comparison and found that 1,291 prisoners filed appeals in 1950 (habeas corpus and civil rights actions). This number jumped to 43,195 in 1990. See J. Harvie Wilkinson, III, The Drawbacks of Growth in the Federal Judiciary, 43 Emory L.J. 1147, 1158 (1994).

23. Wilkinson supra note 22, at 1158-59. The Commission has estimated that the percentage of pro se filings have risen from 10% of the total filings in 1950 to 42% in 1997. See Draft Report at 16, Table 2-5.

24. 365 U.S. 167 (1961). See generally Howard B. Eisenberg, Rethinking Prisoner Civil Right Cases and the Provision of Counsel, 17 S. Ill. U. L.J. 417, 423 ("Certainly, Monroe v. Pape marked a turning point in modern civil rights litigation.").

25. See Crawford-El v. Britton, 118 S.Ct. 1584, 1603 (1998) (Scalia, J., dissenting) Justice Kennedy, concurring in the same case, put it this way:

Prisoner suits under [§ 1983] can illustrate our legal order at its best and its worst. The best is that even as to prisoners the Government must obey always the Constitution. The worst is that many of these suits invoke our basic charter in support of claims which fall somewhere between the frivolous and the farcical and so foster disrespect for our laws.

Id. at 1603 (Kennedy, J., concurring).

26. This number represents a 6.3% year over year drop in pro se prisoner petition appeals which is likely attributable to the effect of the Prison Litigation Reform Act (PLRA), Pub. L. No. 104-134, 110 Stat. 7321, § 804 (Apr. 26, 1996)(qualifying the right of prisoners to take advantage of the in forma pauperis statute, 28 U.S.C. § 1915). See Administrative Office of the United States Courts, Annual Report of the Director 15, 41 (1997). It may be too soon to tell, but the PLRA may alleviate the problems associated with meritless prisoner litigation.

27. See Administrative Office of the United States Courts, Annual Report of the Director 118 (1997).

28. See Douglas v. California, 372 U.S. 353 (1963).

29. Id. at 358.

30. See Donald H. Zeigler and Michele G. Hermann, The Invisible Litigant: An Inside View of Pro Se Actions in the Federal Courts, 47 N.Y.U. L. Rev. 157, 239 (1972).

31. Of the 4754 appeals commenced in the Fourth Circuit in 1997, 2277 (or 47.9%) of those appeals were commenced by pro se appellants. See Administrative Office of the United States Courts, Annual Report of the Director 119 (1997).

32. Flanders & Goldman, supra note 7, at 246. The court today uses informal briefs rather than the "20-day form." See 4th Cir. R. 34(b).

33. Donald P. Ubell, Report on Central Staff Attorney's Offices in the United States Courts of Appeals, 87 F.R.D. 253, 263 (1980).

34. John B. Oakley, The Screening of Appeals: The Ninth Circuit's Experience in the Eighties and Innovations for the Nineties, 1991 BYU L. Rev. 859, 913.

35. See Krafka, supra note 18.

36. See id. at 9.

37. See Id. at 8-9. Prisoner civil rights cases rate of appeal was 8.05 percent in 1977 and 20.56 percent in 1987. See Id. at 9. Other prisoner cases saw the rate of appeal go from 13.99 percent in 1977 to 26.98 percent in 1987. See id.

38. See id. at 16.

39. Id. at 18.

40. Id. at 19.

41. Id.

42. A major concern in the early twentieth century was the reduction of the costs associated with an appeal, including the printing of the record and the briefs. See Minimum Standards of Judicial Administration 415 (Arthur T. Vanderbilt ed. 1949).

43. Nevertheless, the fate of most appeals was recognized well-before the caseload started to change. "Nine-tenths, perhaps more, of the cases that come before a court are predetermined--predetermined in the sense that they are predestined-their fate preestablished by inevitable laws that follow them from birth to death. The range of free activity is relatively small." Benjamin N. Cardozo, The Growth of the Law 60 (1924).

44. Professor Maurice Rosenberg noted in 1974 that although the reasons were uncertain, one likely explanation for the increasing appeal rate even in "old standard type cases" between 1960 and 1974 was the "relative decrease in the cost of perfecting an appeal--relative to the amount of money involved." Maurice Rosenberg, Planned Flexibility to Meet Changing Needs of the Federal Appellate System, 59 Cornell L. Rev. 576, 582 (1974).

45. 28 U.S.C. § 1920 specifies the limits allowed for recovery of costs that may be paid during the course of litigation but it does not allow for the recovery of attorney's fees or attorney's expenses. Shifting the costs of attorney's fees to the losing party [the English Rule] as a means of deterring frivolous appellate litigation appeal was mentioned briefly in a 1989 report. See The United States Court of Appeals: Reexamining Structure and Process After a Century of Growth 125 F.R.D. 523 (A.B.A. Standing Comm. on Fed. Judicial Improvements 1989)[hereinafter ABA Report]. Although the report recognized that in limited circumstances fee-shifting is allowed in the United States by statute, "reform of appellate practice by this route must await far more general changes in the American Rule than have yet been accepted. Like other screening devices that discourage the losing parties from taking an appeal, shifting attorney's fees must be drastic in order to be effective." Id. at 548. The Federal Courts Study Committee also rejected adoption of the English Rule in favor of the American Rule. See Report of the Federal Courts Study Committee 105 (1990).

46. The courts of appeals today allow the parties the right to invoke even more summary motions procedures to terminate appeals as quickly as possible in appropriate cases. For example, the D.C. Circuit has established a procedure whereby any party may move for summary affirmance or reversal within 45 days of the date the case is docketed. Parties are encouraged to file such motions "where sound basis exists for summary disposition." Handbook of Practice and Internal Procedures at 66 (D.C. Cir 1994); D.C. Cir. I.O.P. VIII. G. Summary affirmance is appropriate when "the merits are so clear as to justify summary action" and summary reversal is "rarely granted, and only where the merits are 'so clear, plenary briefing, oral argument, and the traditional collegiality of the decisional process would not affect [the Court's] decision.'" Id. (citations omitted). See also 1st Cir. R. 27.1 (Summary Disposition); 3rd Cir. R. 27.4 (Motions for Summary Action); 3rd Cir. I.O.P. 10.6 (Summary Action); 4th Cir. R. 27(g) (Motions for Summary Disposition). But see 6th Cir. R. 8(a)(3)(Motions to Affirm Prohibited); 10th Cir. R. 27.2.1 ("A party may file . . . for summary disposition only because of a supervening change of law or mootness.").

47. Submission of the United States Department of Justice, Commission on Structural Alternatives For the Federal Courts of Appeals, ¶ 43 (June 1, 1998) <http://app.comm.uscourts.gov/hearings/submitted/USDOJ.htm>(emphasis added).

48. In 1997, the federal courts of appeals held 10,357 oral arguments. See Administrative Office of the United States Courts, Annual Report of the Director 77 (1997). In 1983, only 8,461 oral arguments were held. See Administrative Office of the United States Courts, Annual Report of the Director 106 (1987)

49. Draft Report at 21.

50. See Structural and Other Alternatives for the Federal Courts of Appeals 44 (Federal Judicial Center 1993).

51. See Administrative Office of the United States Courts, Annual Report of the Director 40, 77 (1997).

52. Draft Report at 23. Much like the growth in oral arguments, the number of opinions published has also grown substantially in absolute terms. In 1997, the courts of appeals published 6055 reasoned opinions. See Administrative Office of the United States Courts, Annual Report of the Director 40, 77 (1997). In 1979, that number was only 4699. See William L. Reynolds & William M. Richman, An Evaluation of Limited Publication in the United States Courts of Appeals: The Price of Reform, 48 U. Chi. L. Rev. 573, 586 (1981).

53. This fear is more substantial when screening is conducted without interaction between the judges and the staff attorney who has prepared a proposed disposition that is then circulated from one chambers to the next. See Statement of Judge Carolyn King, supra note 15.

54. Cecil & Stienstra, Examination, supra note 10, at 2-4. The Commission appears to have drawn the same conclusion. The draft report states that "in many courts, well-trained staff attorneys who accurately reflect the views of their courts' judges play a major role in determining what cases will be orally argued." Draft Report at 22-23.

55. Cecil & Stienstra, Examination, supra note 10, at 55.

56. See supra note 51 and accompanying text.

57. Some courts of appeals now provide for live conferencing in screened cases. See Oakley, supra, note 34, at 903, 921. The Tenth Circuit provides a model that fosters active involvement of the panel. See infra notes 94-102 and accompanying text.

58. See Reynolds & Richman Elitism, supra note 1, at 291-292.

59. For further discussion of the problems associated with publication practices see infra notes 139-140 and accompanying text.

60. While there is debate on the subject, it seems clear that at some level non-publication relieves judges of the time needed to insure that a decision will make sound precedent. There is significant support for the proposition that unpublished decisionmaking takes less judicial time. See e.g., Keith H. Beyler, Selective Publication Rules: An Empirical Study, 21 Loy. U. Chi. L. J. 1 (1989); Richard A. Posner, The Federal Courts: Crisis and Reform 124 (1985).

61. See J. Myron Jacobstein, Some Reflections on the Control of the Publication of Appellate Court Opinions, 27 Stan. L. Rev. 791 (1975) (tracing dissatisfaction with publication practices back to Bliss & White, The Common Law, N. Am. Rev. 411, 433 (1824)). See also William L. Reynolds & William M. Richman, The Non-Precedential Precedent--Limited Publication and No-Citation Rules in the United States Courts of Appeals, 78 Colum. L. Rev. 1167, 1168-72 (1978) [hereinafter Reynolds & Richman Non-Precedential Precedent] (tracing dissatisfaction with publication practices to 1915).

62. Minimum Standards of Judicial Administration (Vanderbilt Ed.), 387.

63. See Reynolds & Richman Non-Precedential Precedent, supra note 61, at 1170.

64. At one time, an opinion authored by one judge in which other judges joined, raised concerns that the individual case would be, in effect, decided by "one judge" opinions. Minimum Standards, supra note 62, at 438-39.

65. Hon. Monroe G. McKay & John K. Kleinheksel, The Decisional Process Within the Tenth Circuit-A Panoramic View of Its Internal Operations and Recent Innovations, 33 Washburn L. J. 22, 36 (1993). The Fifth Circuit is now using a somewhat different newer variant for some cases. Every other month a panel of three active judges meets specially in New Orleans for a three to four day sitting, and each day the panel reviews thirty cases. Each judge reviews ten cases in depth and also reads the briefs and a memorandum and draft opinion prepared by a staff attorney. The panel then meets each afternoon with the staff attorney and each case is reviewed orally. By the end of the session all thirty cases are either decided or referred to a screening panel. See Statement of Judge Carolyn King, supra note 15.

66. The Hruska Commission cautiously endorsed the use of centralized staff with the major limitation that staff attorneys should not be allowed to draft opinions or "identify cases for disposition without oral argument." Commission on Revision of the Federal Court Appellate System, Structure and Internal Procedures: Recommendations for Change 53-54 (1975). The Hruska Commission also viewed the limitations on oral argument with concern but did recognize that it was no longer appropriate to order argument in all cases. See id. at 48. This concession was a significant step because the trend away from oral argument was accelerating, a marked departure from the federal tradition. See supra note 7 and accompanying text.

67. Flanders & Goldman, supra note 7, at 247. This is one of three early studies conducted by the FJC. The other two were Comparative Report on Internal Operating Procedures of the United States Courts of Appeals (Federal Judicial Center, 1973) and Central Legal Staffs in the United States Courts of Appeals: A Survey of Internal Operating Procedures (Federal Judicial Center 1978).

68. Flanders & Goldman, supra note 7, at 247.

69. See id.

70. See id. at 252.

71. See id.

72. See id. at 252-53.

73. Id. at 255.

74. See id.

75. S. Rep. No. 95-117, at 22 (1978), reprinted in 1978 U.S.C.C.A.N. 3569, 3585.

76. See Ubell, supra note 33, at 254.

77. See id.

78. The screening programs varied and could be designed to screen for different factors (e.g., jurisdictional problems, fast-track disposition, weighting the difficulty of the case to insure fair distribution of the cases to the judges). Of the eleven circuits that existed in 1980, the D.C., First, Fourth, Fifth, Sixth, Seventh, Eighth, and Tenth Circuits involve staff attorneys in the process of identifying cases for disposition on the merits without oral argument. See id. at 265, 269, 278, 280, 284, 288, 291, 304. The staff attorneys in these circuits also prepared memoranda or draft opinions for use in cases decided without oral argument. See id. The Ninth Circuit used staff attorneys in conjunction with its inventory and calendaring process which weights cases. See id. at 295.

79. Id. at 263.

80. Id.

81. Arthur D. Hellman, Central Staff in Appellate Courts: The Experience of the Ninth Circuit, 68 Cal. L. Rev 937 (1980).

82. See id. at 978-79, 985-86.

83. See id. 989-95. In 1997, the Ninth Circuit disposed of 61% of its merits dispositions without oral argument, very slightly above the overall average for all regional circuits. See Administrative Office of the United States Courts, Annual Report of the Director 38 (1997).

84. Id. at 1003.

85. Joe S. Cecil & Donna Stienstra, Deciding Cases Without Argument: A Description of Procedures in the Courts of Appeals (Federal Judicial Center 1985) [hereinafter Cecil & Stienstra, Description].

86. In some circuits, the screening panel may also review the cases recommended for oral argument but in other circuits these cases will be calendared for argument without review by the screening panel. See id. at 1.

87. See id. at 9.

88. See id. A second process was in use in the Sixth and Federal Circuits - the cases were reviewed by staff attorneys in much the same way as described for the Fifth Circuit model but the cases were then forwarded to regular panels that would then decide whether the cases would receive oral argument.

89. See id. at 41.

90. Cecil & Stienstra, Examination, supra note 10. FJC studies are particularly informative because they are often started at the request of the courts or the Judicial Conference and they are conducted with the cooperation of the judges. As a result they are a source of information about the internal operation of the courts that independent researchers cannot duplicate.

91. See id. at 20.

92. Id. at 160. "Judicial philosophy regarding the role of and the need formal argument appears to be a more important factor than the procedure used for identifying the nonargument cases." Id. at 21.

93. Id. at 157.

94. Joe S. Cecil & Donna Stienstra, The Role of Staff Attorneys and Face-to-Face Conferencing in Non-Argument Decisionmaking - A View from the Tenth Circuit Court of Appeals, 1989 WL 270240 (Federal Judicial Center 1989).

95. See id. at *4.

96. See id.

97. See id.

98. See id. at *5.

99. See id. at *23.

100. See id.

101. See id.

102. Id. at *25.

103. ABA Report, supra note 45.

104. Id. at 546. Other advisory groups and articles provided support for the growing use of centralized staffs. See Ubell, supra note 33; James Duke Cameron, The Central Staff: A New Solution to an Old Problem, 23 UCLA L. Rev. 465 (1976). Cameron, then Chief Justice of the Arizona Supreme Court, stated:

The concept of central staff has developed from two sources: the realization that the court as an institution needs assistance quite apart from the assistance a law clerk gives to his judge; and, further, that the help a court needs in the decision-making process can be provided much more efficiently by a permanent central staff than by law clerks specially or occasionally assigned to that task.

Id. at 468.

105. ABA Report, supra note 45, at 546.

106. See id. at 549. "The difficult and important question is how court personnel can assist judges in drawing this distinction [between harder and easier cases] without deciding cases themselves." Id.

107. Id. Rule 34 does in fact require the courts to allow the parties to state why they think argument should or should not be held. The statement is either submitted with the brief or it is stated as an objection after the parties are notified that argument will not be held. See Fed R. App. P. 34(a). Whether this provision is adequate is questionable. The 1987 FJC study indicated that the judges "give these statements little weight because they typically include nothing more than a suggestion that argument be heard." Cecil & Stienstra, Examining, supra note 10 at 163. Reasoned statements explaining why the court would be aided by argument, particularly those that tracked the standards articulated in Rule 34(a) were particularly influential. See id.

108. See Administrative Office of the United States Courts, Survey of the Staff Attorneys' Offices of the United States Courts of Appeals (1989).

109. See id. at 33.

110. See id. at 28.

111. Id. at 28.

112. Id. at 34.

113. See Report of the Federal Courts Study Committee 31 (1990).

114. Id. at 109. Judge Ruggero J. Aldisert puts it more colorfully when he recalls that "the Philadelphia bar moaned and wailed as if the advocacy world were coming to an end" when the Third Circuit reduced argument to 30 minutes a side in 1968. Aldisert, supra note 7, at 13. Today, he notes, in the U.S. courts of appeals the advocate's major tool is the written brief; oral argument is the exception, not the rule. See id. The time usually allowed now is fifteen minutes. See id. The trend is irreversible and he "[does] not believe that justice suffers as a result." Id.

115. Report of the Subcommittee of the Federal Courts and Their Relation to the States, in 1 Federal Courts Study Committee, Working Papers and Subcommittee Reports 79 (1990).

116. Id.

117. See Oakley, supra note 34. This paper incorporates and builds upon a published chapter, John B. Oakley & Robert S. Thompson, Screening, Delegation and the Values of Appeal: An Appraisal of the Ninth Circuit's Screening Docket During the Browning Years, in Restructuring Justice 138 (Arthur D. Hellman ed., 1990).

118. See Oakley, supra note 34, at 898.

119. See id. at 864-68.

120. See id at 905-08. This trend can be seen elsewhere. In the Sixth Circuit hearing panels consider screened cases at the same session where they hear oral arguments. See 6th Cir. I.O.P. 18. Each judge receives the legal research memoranda prepared by the staff attorney along with the briefs of the parties. See id. Following oral argument in hearing cases the judges hold a conference on the cases recommended for disposition without oral argument. See id. If all judges do not agree to decide the case without oral argument, the case will be returned to the Clerk for rescheduling of argument. See id.

121. See Oakley, supra note 34, at 914.

122. See id at 922. While the process has certainly become more inquisitorial for pro se cases, that change can be traced to the limited assistance the pro se brief provides in the deliberative process. In counseled cases, the concern about the inquisitorial nature of the process seems less valid because, although there is no oral argument, the parties' briefs remain the focal point of the court's review.

123. Chief Judge Joseph Hackett, Testimony before the Commission on Structural Alternatives for the Federal Courts of Appeals 11 (March 23, 1998) available at <http://app.comm.uscourts.gov/hearings/atltrans.pdf>. Former Chief Judge Tjoflat, however, thought the process was satisfactory and had no concern that cases that deserved argument were not getting it, stating "I think we hear argument in cases in which argument would be helpful . . .[a]nd the lion's share of those cases are civil." Judge Gerald B. Tjoflat, Testimony before the Commission on Structural Alternatives for the Federal Courts of Appeals 56-57 (March 23, 1998) available at <http://app.comm.uscourts.gov/hearings/atltrans.pdf>. The differing views between Judges Hackett and Tjoflat suggest differing philosophies regarding the utility of argument generally, not unlike the findings from the FJC 1987 study of oral argument in four different circuits. See supra notes 90-93 and accompanying text.

124. Judge Carolyn Dineen King, Testimony before the Commission on Structural Alternatives for the Federal Courts of Appeals 22-23 (March 25, 1998) available at <http://app.comm.uscourts.gov/hearings/daltrans.pdf>.

125. Draft Report at 54.

126. The Commission has stated that this flexibility is by design, allowing the courts to handle unforeseen circumstances and continue their innovative efforts. Draft Report Foreword at ix. In my view, flexibility is achieved without sacrificing basic uniformity of process among the courts of appeals. The current Commission proposal may lead to fundamentally different processes being used in each of the courts of appeals to decide what are essentially the same cases.

127. Proposed 28 U.S.C. § 46(b), Draft Report at 84.

128. The Commissions comments suggest that they should be used to decide cases controlled by well-settled precedent. Draft Report at 54. Although these are not cases that are usually calendared for oral argument, the proposed amendment to 28 U.S.C. § 46 contains no limitation upon the authority of two-judge panels to hear oral argument. See id. at 85.

129. The Commissions suggests that a split panel can bring in a third judge. Draft Report at 54. The proposed statutory language provides no framework for how that possibility can be effectuated. See id. at 85.

130. Draft Report at 54.

131. One judge has referred to this as the "rule of one." See Hon. Monroe G. McKay and John J. Kleinheksel, The Decisional Process Within the Tenth Circuit - A Panoramic View of Its Internal Operations and Recent Innovations, 33 Washburn L.J.

22, 38 (1993) ("'the rule of one' which is scrupulously adhered to: Any judge on the panel may direct reassignment of the case for oral argument."); Cecil & Stienstra, Examination, supra note --, at 158 ("it appears that the opportunity for a single judge, exercising individual discretion, to place a case before an argument panel is a primary reason that conflicting opinions concerning the role of oral argument continue to exist in harmony").

132. See supra notes 94-102 and accompanying text. See also McKay & Kleinheksel, supra note 131.

133. Proposed 28 U.S.C. § 145(c). Draft Report at 87.

134. See Morrison v. Olson, 487 U.S. 654, 680-81 (1988)(judicial branch must not be assigned tasks that are more properly accomplished by [different] branches); Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 851 (1986). See also Mistretta v. United States, 488 U.S. 361 (1989).

135. Proposed 28 U.S.C. § 145(b). Draft Report at 87.

136. See Shirley M. Hufstedler, New Blocks for Old Pyramids: Reshaping the Judicial System, 44 S. Cal. L. Rev. 901 (1971).

137. Draft Report at 22 note 54.

138. Id.

139. For a comprehensive collection of authority on the issue of publication see Robert J. Martineau, Restrictions on Publication and Citation of Judicial Opinions, A Reassessment, U. Mich. J.L. Ref. 119, 126 note 39 (1994). See also id. at 148-149 (suggesting that non-publication and citation rules, that have otherwise worked well, are threatened by electronic databases, and recommending more vigorous enforcement of non-publication and citation rules); Martha J. Dragich, Will the Federal Courts of Appeals Perish If They Publish? Or Does the Declining Use of Opinions to Explain and Justify Judicial Decisions Pose a Greater Threat?, 44 Am U. L. Rev. 757 (1995)(criticizing existing non-publication practices and suggesting that all "law-making" opinions be published); Donna Stienstra, Unpublished Decisions: Problems of Access and Use in the Courts of Appeals (Federal Judicial Center 1985)(citing concerns that inequalities arise if equal access to unpublished opinions is unavailable and that unacknowledged use occurs in no-citation systems); J. Myron Jacobstein, Some Reflections on the Control of the Publication of Appellate Court Opinions, 27 Stan. L. Rev. 791 (1975)(recommending the implementation of non-precedential opinions in certain situations); Lauren K. Robel, The Myth of the Disposable Opinion: Unpublished Opinions and Government Litigants in the United States Courts of Appeals, 87 Mich. L. Rev. 940 (1989)(suggesting that differentiated access to unpublished opinions leads to fairness concerns); Hon. Phillip Nichols, Jr., Selective Publication of Opinions: One Judge's View, 35 Am. U. L. Rev. 909, 919 (1986)(citing change in demographics of caseload as rationale for non-publication and non-citation); Hon. Bruce M. Selya, Publish and Perish: The Fate of the Federal Appeals Judge in the Information Age, 55 Ohio St. L.J. 405, 409 (1994)(suggesting that an "unpublished" opinion should not be published either traditionally or electronically citing concerns of " the infoload crisis"); Elizabeth M. Horton, Selective Publication and the Authority of Precedent on the United States Courts of Appeals, 42 UCLA L. Rev. 1691, 1715 (1995)(suggesting that selective publication practices allow courts to establish the relative authoritative weight to be given to a particular opinion); Hon. Charles W. Joiner, Limiting Publication of Judicial Opinions, 56 Judicature 195 (1972)(citing volume of opinions as "a burden and a threat to a cohesive body of law"); Kirt Shuldberg, Comment: Digital Influence: Technology and Unpublished Opinions in the Federal Courts of Appeals, 85 Calif. L. Rev. 541 (1997)(concluding that with electronic access all opinions should be disseminated available for citation); Baker, supra note 1, at 125-135 (calling for a uniform national procedure regarding publication and citation). See generally William L. Reynolds & William M. Richman, An Evaluation of Limited Publication in the United States Courts of Appeals: The Price of Reform, 48 U. Chi. L. Rev. 573 (1981); Reynolds & Richman, Non-Precedential Precedent, supra note 61.

140. See Paul Marcotte, Unpublished But Influential, 77 A.B.A. J. 26 (1991)(citing concerns that unpublished opinions still carry unauthorized precedential value in some courts); See e.g. Hodges v. Delta Airlines, 4 F.3d 350 (5th Cir. 1993) (holding the court bound by unpublished precedent). See also 5th Cir. R. 47.5.3 (stating that unpublished opinions before January 1, 1996, are precedent).

141. Draft Report at 22.