Back to the drawing board: re-examining accepted premises of regional circuit structure.

• Author: Dragich, Martha
• Position: US Courts of Appeals

1. INTRODUCTION

   Regional boundaries have defined the lower federal courts since their inception. But the federal courts have changed markedly in the intervening years in terms of the jurisdiction, staffing, and role of each tier within the federal judicial system. Today, the courts of appeals are almost always the end of the line for litigants. (1) The only path to review by the Supreme Court is discretionary, and the Court takes only a minute fraction of the cases in which certiorari petitions are filed. (2) The balance of cases in federal courts today is heavily weighted toward cases involving federal law. (3) Cases involving application of state law have steadily declined as a fraction of federal court caseloads. (4) Accordingly, it would seem that the federal courts should be structured to promote reasonable uniformity of decision on questions of federal law.

   Paradoxically, the geographic organization of the federal courts seems to privilege regional over national concerns and may render these courts ill-suited to promote uniform interpretation of federal law. The courts of appeals function as largely independent adjudicatory bodies. (5) The regional structure of the courts of appeals, together with the "law of the circuit" doctrine, values intra-circuit consistency and tolerates considerable inter-circuit conflict. (6) The result is a systemic lack of capacity for uniform development of federal law.

   The experience of recent decades suggests that political will is lacking to undertake a broad restructuring of the courts of appeals that involves either adding appellate courts or departing altogether from the concept of regional organization. (7) Congress has acted rarely and cautiously in response to excessive caseloads. Beginning in 1929, when it carved the new Tenth Circuit out of the former Eighth Circuit, (8) Congress chose intra-circuit reform over system-wide adjustments. Since the split of the Eleventh Circuit from the former Fifth Circuit in 1980 (9) and the creation of the Federal Circuit in 1982, (10) the only structural reform measure enacted was a significant increase in authorized judgeships in 1990. (11) Following that expansion of the federal judiciary, circuit judges themselves have debated the merits of any further expansion. (12) Yet calls for reform are persistent, even though continuing to regard the existing regional boundaries as sacrosanct makes meaningful reform that preserves federal appellate justice in its traditional form difficult to imagine.

   This article aims to determine which of the accepted structural features of the courts of appeals are essential by demonstrating that the federal courts are designed to assure the supremacy and uniformity of federal law, and that regional organization was intended to foster, not to negate, uniformity. And it identifies and evaluates specific entrenched ideas about circuit structure.

   Thus, this article considers the Hruska Commission's (13) articulated (but largely unexplained) criteria, (14) which hold that

   (1) circuits should be composed of at least three states; (2) no circuit should be created that would immediately require more than nine judges; (3) a circuit should contain states with a diversity of population, legal business, and socioeconomic interests; (4) realignment should avoid excessive interference in established circuit alignment; and (5) no circuit should contain noncontiguous states. (15)

   This article also assesses the additional, widely accepted criterion that no state should be split between two or more circuits, (16) and concludes that these criteria have hindered attempts to accommodate the growing appellate caseload by restructuring the courts of appeals in a manner calculated to provide for reasonably uniform interpretation of federal law. (17) It includes an argument that these criteria are generally outmoded, (18) tracing their origin to earlier courts bearing little resemblance to the current courts of appeal, and notes that the criteria are also internally inconsistent. (19)

   But it also acknowledges that some of the entrenched criteria remain meaningful determinants of circuit structure given the contemporary role and function of the federal courts of appeals: The three-state and diversity-of-business principles preserve the generalist tradition of the federal courts and promote uniformity of federal law, at least weakly. They could be strengthened if Congress were to consolidate some circuits. The whole-state criterion does little to promote uniformity in federal law but does protect uniformity of state law. Given the shift from diversity cases to federal question cases, this consideration is of diminishing importance as a determinant of the structure of the federal courts of appeals. The contiguity criterion has lost relevance given changes in the demographics, economies, and other characteristics of individual states. At the same time, the contiguity criterion may be in tension with the diversity-of-business principle.

   Inconsistency and obsolescence notwithstanding, the accepted criteria continue to dominate the discussion because structural criteria interact with the decisional structures of the courts of appeals. Decisions are rendered by panels of three judges. (20) En banc decisions are rare; many question the effectiveness of this mechanism in maintaining intra-circuit consistency of decision. (21) Panels are bound to follow prior panel decisions from within the circuit. (22) But inter-circuit conflicts develop because the circuits are not bound to follow each other's decisions. (23) The Supreme Court, exercising discretionary review only, resolves relatively few such conflicts. (24) Thus, the key decisional structures of the courts of appeals have come to emphasize the "law of the circuit" rather than uniform federal law. (25) The law of the circuit doctrine, in turn, cements the minimal-disruption criterion. Because federal law is settled circuit by circuit and inter-circuit conflicts develop, any change in circuit boundaries would be accompanied by a change in the law applicable to some citizens. (26) As a result, all realignments of states to circuits since the Evarts Act have taken place within existing circuit boundaries that date to the Civil War era. (27)

   The article continues by inquiring whether meaningful structural reform is possible within the geographic organizing principle and concludes that Congress is unlikely, for good reasons, to abandon this broad principle. It goes on to suggest the types of reform Congress could consider within the regional organizing principle. This Part concludes that reform remains possible only if Congress is willing to reconsider its adherence to some or all of the accepted criteria for circuit structure.

   The article ends by concluding that reform proposals invariably run afoul of one or more of the accepted criteria and yet seem likely to achieve relatively little. If Congress undertakes a serious reform effort, it should acknowledge that disruption is inevitable and focus on the important, enduring characteristics of the courts of appeals as small, generalist courts inferior to the Supreme Court. These characteristics are far more central than the specific criteria for drawing circuit boundaries. In the end, the most significant obstacles to meaningful reform are the highly political nature of the task; Congress's preference for piecemeal reforms; and the Constitution's inferiority mandate.

2. THE NEED FOR FEDERAL COURTS

   Article III establishes a "supreme Court" and allows for "such inferior Courts as Congress may from time to time ordain and establish." The scope of Congress's powers to create (or not) lower federal courts, and its power to strip the federal courts of jurisdiction authorized by Article III, are matters of considerable and enduring controversy. (28) In large part, this controversy hinges on one's view of the need for federal courts, and hence of the proper roles of such courts. Another important variable is one's view of the ability of state courts to fill any void left by failure to create federal courts or to vest them fully with the jurisdiction Article III authorizes. (29) This article recounts only so much of this controversy as is necessary to establish a point of departure for considering the structure of the courts of appeals.

   Two roles are commonly ascribed to the federal courts. (30) The simpler of the two is that federal courts are needed to serve as neutral arbiters in cases involving states as parties (31) or cases involving parties from different states. (32) The state courts were considered by some to be incapable of deciding such cases in an unbiased manner, or in a manner that litigants would necessarily accept as impartial. (33) But here, the federal courts are merely alternative tribunals to which litigants may resort. (34) Federal diversity jurisdiction is not exclusive, it is limited by the amount in controversy and other requirements, and it is declining as a percentage of federal court caseload.

   The other major role for federal courts is to ensure the supremacy of federal law. The theory of "dual sovereignty," (35) which holds that the federal and state governments are sovereign within their independent spheres, suggests that the courts of each government must be empowered to serve as ultimate arbiters of that government's law. (36) The only departure comes from the Supremacy Clause, which establishes that federal law trumps state law in case of a conflict. (37) Supremacy demands authoritative and uniform interpretation and application of federal law. (38) If this were not the case, state courts could indeed hear all cases in the first instance, subject only to discretionary review by the United States Supreme Court. While Article III gives Congress discretion not to create lower federal courts, there are reasons to think that some lower federal courts may be required. In some areas, federal jurisdiction is...