Appellate Courts: Structures, Functions, Processes, and Personnel, 2d ed.

• Author: Carrington, Paul D.
• Position: Book review

The new edition of Appellate Courts: Structures, Functions, Processes and Personnel was produced to serve law students in a course on Appeals. It is well done. The course should be in the curriculum of every law school that hopes not only to supply law clerks, staff attorneys for appellate courts, or (most especially) appellate judges, but also leaders of the organized bar and top government lawyers who share responsibility for the laws governing appellate courts and their proceedings. Better knowledge of its subject might even help a lawyer win a case every now and then.

Many of the issues presented in this book are seldom noticed by many law teachers or their students. (1) Some of these are narrowly technical in nature. For example, who teaches that the time for appeal is "jurisdictional" in the sense that no court may, even for good cause, grant an extension? Many have protested this excessive rigidity; (2) yet the Supreme Court applied it again in 2007 to bar an appeal from a habeas denial that was filed two days late but before the date specified by the district judge. (3) The judge simply misread the calendar by three days, and no one representing the state objected, perhaps because its lawyers shared the appellant's counsel's failure to notice the error. Even a well-educated and reasonably careful lawyer could have forfeited his clients' rights in such circumstances. And it is hard to see what harm was done to the state by giving the prisoner a couple of extra days to appeal.

The brutal result in Bowles v. Russell was based on the conclusory declaration that the time for appeal has long been held to be "jurisdictional," and therefore cannot be extended for any reason. (4) Five Justices disowned their power to "create equitable exceptions," (5) i.e., to do justice even when the mistake was made by a federal district judge and counsel for the state made no objection to the extra days. As the dissenters observed, the appellant's appointed counsel

probably just trusted that the date given was correct, and there was nothing unreasonable in so trusting. The other side let the order pass without objection, either not caring enough to make a fuss or not even noticing the discrepancy; the mistake of a few days was probably not enough to ring the alarm bell to send either lawyer to his copy of the federal rules and then off to the courthouse to check the docket. (6) One cannot say with certainty that if they had taken a law school course designed around this book, the majority of the Court would have reached a more sensible result, but surely it is an aim of professional education to demean such disgraceful nonsense as that expressed in the majority opinion.

The course and the book are, however, about much more than such legal technicalities. The book is a critical assessment of the cultural and institutional roles of appellate courts. Few lawyers, even those appointed or elected to an appellate bench, or who serve in high government offices, have ever thought critically about many of the issues posed. The chief thing American lawyers learn in law school about appellate courts is that they make law. And perhaps the primary motive of those lawyers seeking appellate judgeships is an ambition to exercise that lawmaking power. But this volume goes beyond the basics to raise the fundamental questions that even moot court practice seldom raises: Who are these persons I address when making an argument as counsel? What is their role in the legal system? What claims have a litigant or his counsel to their attention? What claim has the trial judge under review to a measure of deference? The editors aptly quote Judge Dickson Phillips's observation that the answers to these questions are "surprisingly unsystematic and relatively obscure." (7)

Given this obscurity and the fixation of law schools on the lawmaking function of appellate courts, it is unsurprising that appellate judges tend to delegate to law clerks and staff attorneys the onerous and less celebrated or less rewarding work that comes with the bulk of the appeals, and to save for themselves opportunities to express views on the public policies of the day in ever longer but fewer published opinions. In the federal system, most lawyers are not heard to speak at oral argument, so the judges responsible for deciding their cases need neither be seen nor demonstrate their familiarity with the issues presented. Indeed, many, many appeals are decided by memoranda written by staff attorneys subject to nominal oversight by those appointed by the President and confirmed by the Senate to assure the correctness of the actions of United States courts.

The tendency of judges to delegate is magnified in the federal courts by the reality that the appetite for lawmaking pervades the federal judiciary. Even the trial judges subject to the appellate courts' review have also acquired large staffs to which they delegate the tasks that seem humdrum and unworthy of their full attention. That tendency is so visible that Judge Patrick Higginbotham has questioned why we still call them "trial judges" if they no longer conduct trials. (8) District Judge Brock Hornby explains that having less to do in the courtroom, he is using his law clerks to write long legal opinions (9) because the appellate courts are increasingly applying their work model to the trial judges. (10) And at the other end of the hierarchy the Supreme Court has done much the same, delegating its less exciting duties to staff and to lower courts so that the Justices can enjoy writing fewer but longer opinions. Among the judicial duties often delegated by the Supreme Court to lower courts is responsibility for the legal correctness of the dispositions in cases it considers when performing its more exhilarating legislative function. Consider then the question: "Why do we still call them appellate judges--or Justices--if their primary task is to proclaim law as legislators? (11)

Yes, of course, appellate courts make law. But we do have other institutions to provide that service. The indispensable task of the appellate court is to correct error, or perhaps more precisely, to convince the parties and their counsel that the possibility of incorrect application of the law has been seriously considered by judges of rank and security, and to remind trial judges that they are indeed confined by the law in the choices that they may make in response to overtures from parties. Congressman David Culberson, who in 1891 led the initiative to establish the United States Courts of Appeals, proclaimed his purpose as the constraint of the "kingly power" of federal trial judges who were then too numerous and too self-indulgent to be corrected by one Supreme Court. (12) If the newly commissioned intermediate appellate judges were to make law, that effort was to be merely incidental to their primary task of making the trial judges visibly accountable for their fidelity to controlling law.

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