Much has been said of a purported inconsistency of decision making in the Ninth Circuit and of its supposed status as "out of step" with other circuits. Utilizing anecdotal evidence, critics attempt to lay the blame for these jurisdictional failings at the feet of size and the large number of judges in this circuit. This criticism is unfounded.

A study of the actual decisions rendered by the Ninth Circuit reveals a far different story. As the author of a national publication on federal practice who reads thousands of cases for each year's update, I can state that the Ninth Circuit demonstrates remarkable intra-circuit consistency and, at least in the area of federal practice, issues rulings entirely in step with the rules of decision in other circuits. If the Ninth Circuit is a behemoth, it is one that performs its core function very well indeed.

Along with Judge William W Schwarzer and Judge A. Wallace Tashima, I am the author of the 2600-page, two-volume work Federal Practice Guide: Federal Civil Procedure Before Trial (TRG 1998). We first began publishing in 1984 and focused on all aspects of federal civil procedure before trial. The book is in use throughout the United States; with a particularly heavy circulation in California. Each year, we prepare a comprehensive update, incorporating all major decisions rendered in the last year by the various circuit and district courts. We take special care to note intra-circuit and inter-circuit conflicts.

I have also had a unique opportunity to study long-term trends in Ninth Circuit decision making in my capacity as a regular lecturer on federal jurisdiction and procedure for the Federal Judicial Center. Each year I speak at various circuit workshops as well as part of the week long New Judges Orientation in Washington, D.C. In these capacities, I have studied federal practice decisions in each circuit and have had the opportunity to compare them to those generated in the Ninth Circuit.

As I will show below, the Ninth Circuit has been remarkably free from intra-circuit conflict in the broad areas of my study. Rather, I have observed a healthy and intellectually honest commitment to intra-circuit stare decisions.

Of equal significance, I have concluded that the Ninth Circuit's federal practice rulings are wholly in line with those throughout the country. I have observed no patterns of aberrational decision making nor any negative consequences stemming from the size of the Ninth Circuit or from the number of judges sitting on its panels.

By way of illustration, I will focus on the area of federal jurisdiction. As have other circuits, the Ninth Circuit has rendered a large number of decisions in this field in the last fifteen years. This can be an ever-changing topic area and one in which one could expect deviations both intra and inter-circuit. I have observed the opposite. The Ninth Circuit has formulated jurisdictional rules in a coherent manner, even in areas where there is large room for differences of opinion.

A small number of examples illustrates these points. First, in the area of diversity jurisdiction, the Ninth Circuit has resolved a number of issues that have confounded other circuits. Questions relating to a corporation's principal place of business,⁽¹⁾ the citizenship of a foreign corporation doing business in the United States⁽²⁾ and the effect of "collusive" assignments⁽³⁾ have all been resolved by recent Ninth Circuit decisions. These cases have become the "law of the Court" without contradiction, and fairly represent resolutions of these questions in other circuits.

Second, the Ninth Circuit has addressed difficult questions of removal jurisdiction in a similarly uniform manner. Ninth Circuit panels have resolved questions relating to jurisdictional amount and citizenship⁽⁴⁾ the "arising under" question in discrimination suits ⁽⁵⁾, and difficult questions of complete preemptions under ERISA and the LMRA.⁽⁶⁾ These decisions reflect scholarly resolution of difficult issues. Other Ninth Circuit panels adhere to these rulings and they have persuaded other circuits of their correctness.

The final example concerns the ever-complex question of declaratory relief abstention. The Ninth Circuit accurately predicted the Supreme Court's decision in Wilton v. Seven Falls Insurance Co. ⁽⁷⁾ by providing district court judges with discretion to abstain from deciding such cases. ⁽⁸⁾ Later, when these abstention questions grew to include situations where there was no parallel state court proceeding, the Ninth Circuit went en banc to describe the nature of the district court judge's role in this decision making process.⁽⁹⁾ Again, the Ninth Circuit's rules in this area are consistent with those in other circuits.

This controlled decision making extends to other areas of federal practice, including personal jurisdiction, venue, summary judgment and class actions. In my view, the size of the Ninth Circuit has not adversely affected the Court's ability to articulate uniform rules, notwithstanding the number of different panels rendering them.

At an even more gut-level, it has been my observation that the Ninth Circuit has greater (not lesser) intra-circuit uniformity than in other circuits. When I have been preparing update programs for various workshops over the last ten years, many circuits, including even the smallest ones, have had strong disagreements among "competing" panels in areas of federal practice. Ironically perhaps, the Ninth Circuit's size may increase the likelihood that other panels will honor intra-circuit stare decisions.

Overall, I am of the unmitigated belief that "if it is not broke, don't fix it." From my vantage point as an author, lecturer, law school professor and practitioner, there is nothing broke in the decisions making machinery of the Ninth Circuit. Therefore, speaking on my own behalf, I oppose any efforts to split the circuit along these grounds.

1. Industrial Tectonics, Inc. v. Aero Alloy (9th Cir. 1990) 912 F.2d 1090.

2. Danjaq, S.A v. Pathe Communications Corp. (9th Cir. 1992) 979 F.2d 772.

3. Nike, Inc. v. Comercial Iberica (9th Cir. 1994) 20 F.3d 987.

4. Sanchez v. Monumental Life Ins. Co. (9th Cir. 1996) 95 F.3d 856; Gaus v. Miles (9th Cir. 1992) 980 F.2d 564.

5. Rains v. Criterian Systems, Inc. (9th Cir. 1996) 80 F.3d 339; Easton v. Crossman Mortgage Corp. (9th Cir. 1997) 114 F.3d 979.

6. See e.g., Ramirez v. Fox Television Station, Inc. (9th Cir. 1993) 998 F.2d 743; Olson v. General Dynamics Corp. (9th Cir. 1991) 960 F.2d 1418.

7. 515 U.S. 277 (1995).

8. Polido v. State Farm Mutual Automobile Ins. Co. (9th Cir. 1997) 110 F.3d 1418.

9. Government Employees Ins. Co. v. Dizol (9th Cir. 1998) 133 F.3d 1220.