Injustice on Appeal: The United States Courts of Appeals in Crisis.

AuthorLevy, Marin K.
PositionBook review

Injustice on Appeal: The United States Courts of Appeals in Crisis

BY WILLIAM M. RICHMAN & WILLIAM L. REYNOLDS

NEW YORK, NY: OXFORD UNIVERSITY PRESS, 2012, PP. 256. $89.50.

REVIEW CONTENTS INTRODUCTION I. DIAGNOSING THE PROBLEM IN THE COURTS OF APPEALS: AN ACCOUNT OF THE CASELOAD CRISIS II. AN IMPRACTICAL CURE: EXPANDING THE FEDERAL BENCH III. NEW AVENUES FOR IMPROVING THE JUDICIARY A. Non-Argument Review 1. Training and Hiring of Staff Attorneys 2. Voting Behavior of Judges B. Court Practices Generally 1. Practices Relating to Visiting Judges 2. Practices Relating to Senior Judges 3. Remaining Court Practices CONCLUSION INTRODUCTION

When recently asked what he thought was one of the greatest problems plaguing the federal judiciary, Supreme Court justice Samuel Alito responded by saying the "crushing" workload faced by his former colleagues on the courts of appeals. (1) The Justice's statement should come as no surprise. For close to half a century, judges and scholars alike have spoken out about a critical problem facing the federal appellate courts: the caseload has grown at an exponential rate. (2) Whereas in 1950 circuit judges had to review an average of only 73 appeals, (3) their modern counterparts must decide more than four times as many, with an average of 329 appeals per annum today. (4) Indeed, it is on account of this precipitous rise in caseload that the federal courts of appeals have so often been said to face a "crisis in volume." (5)

Attempts to assess and ameliorate this crisis have come from the bench, bar, and academy. Several committees and commissions have studied the problem, including, most notably, the Commission on Revision of the Federal Court Appellate System (also known as the Hruska Commission) in the 1970s, (6) the Federal Courts Study Committee in the 1980s, (7) and the Commission on Structural Alternatives for the Federal Courts of Appeals (or the White Commission) in the 1990s. (8) Throughout this time, prominent jurists including Chief Justice William Rehnquist, (9) Judge Henry Friendly, (10) Judge Jon Newman, (11) and Judge Richard Posner (12) have weighed in from the bench, writing that the rising caseload stands to harm the court system as we know it. Scholars including Paul Carrington and Daniel Meador have similarly written extensively about the predicament, (13) discussing measures the courts could undertake to preserve their fundamental nature as the caseload mounts. These efforts to better understand our court system in the face of this crisis helped create, and ultimately define, the field that is now called "judicial administration." (14)

Over the past thirty years, no one has contributed more to this field than two court scholars together-William M. Richman and William L. Reynolds. Through a series of critical articles, (15) Richman and Reynolds were able to pinpoint the precise effects of the caseload crisis, both on litigants and the system as a whole. Furthermore, they were able to show the interplay of these various effects, providing a holistic account of the problem in a way that no one else had done. (16) Their recent book, Injustice on Appeal: The United States Courts of Appeals in Crisis, (17) stands as a culmination of their earlier work, (18) bringing together vital analysis of the caseload crisis, the ways in which appellate review has suffered as a result of that crisis, and potential solutions. More broadly, Injustice on Appeal stands as one of the most comprehensive and thoughtful accounts of the largest problem facing the federal judiciary today.

Part I of this Review assesses the major contributions of the book--namely Richman and Reynolds's detailed discussion of the effects of the courts' staggering caseload. As the Injustice authors were among the first to point out, the courts' increased workload has meant that only a fraction of all appeals now receive what one might call "traditional" appellate adjudication in the form of oral argument, consideration by a judge and his or her clerks, and then a published opinion. Instead, the vast majority of appellate litigants currently receive no oral argument, (19) have their cases worked up primarily by staff attorneys, (20) and then have their cases disposed of via unpublished order or summary judgment. (21) Injustice delineates the losses associated with each of these case-management developments, but then makes two larger, profound points. First, it is not simply that some cases receive less judicial attention overall, but rather that some kinds of cases receive less attention--namely, social security cases, prisoner cases, and criminal cases (or, as the authors point out, cases brought by parties who are arguably the most vulnerable in our legal system). Second, by deciding which cases will receive significant judicial attention and which cases will receive very little, the courts of appeals have begun to resemble certiorari courts--a move they have made entirely on their own. Part I concludes by assessing the significance of these two contributions and their theoretical implications.

While the Review by and large concurs with Richman and Reynolds's diagnosis of the problems facing the federal judiciary, it parts company on the cure. Part II assesses the final portion of Injustice, which provides the authors' would-be prescriptive measures. Specifically, Richman and Reynolds argue that the obvious solution to the problem of an overworked judiciary is simply to increase the size of the judiciary--and substantially, by as much as one hundred percent. (22) While increasing the resources of a resource-constrained court system might seem like a fitting response, the authors' proposal falls short in two respects. First, it fails to provide any sort of detail about how this change would be implemented, including whether it would involve increasing the size of the existing circuits or adding new circuits altogether, and whether it would happen gradually or in a condensed timeframe. Problems afflict all of these implementation mechanisms, and because the authors fail to articulate a full proposal for expanding the judiciary, it is possible that Richman and Reynolds's solution might amount to a cure that is worse than the disease.

Yet beyond these ground-level practical problems is a greater problem still--the problem of political reality. By the authors' own account, proposals to expand the bench have stalled because the judiciary has been opposed to them and Congress has not been moved to act on its own. (23) Barring an explanation of why the motivations of both branches have changed--something Richman and Reynolds do not provide--it seems highly unlikely that these same branches would now support a plan to add over 150 new judges (at an initial cost of over $150 million (24)) any time soon.

The final Part of the Review therefore focuses on more fruitful avenues for improving the judiciary. In particular, Part III considers ways of enhancing non-traditional review through means such as altering judicial voting practices and increasing the specialization of staff attorneys. It also sets out potential ways to improve appellate adjudication more generally, focusing on the use of visiting judges, senior judges, and other so-called "housekeeping" practices of the courts that together have a significant impact on tens of thousands of cases each year. (25)

The Review concludes that although Richman and Reynolds may not have provided the optimal prescription for improving the state of the federal courts of appeals, their book serves a critical function by providing the most comprehensive account of the problems plaguing those courts today and over the past several decades. That account stands to make a significant contribution on its own, and will no doubt inspire a second wave of scholars to contemplate one of the key questions for the judiciary and the academy: how can we improve the quality of appellate review in this country?

  1. DIAGNOSING THE PROBLEM IN THE COURTS OF APPEALS: AN ACCOUNT OF THE CASELOAD CRISIS

    Injustice on Appeal begins "BCE" or "before the caseload explosion." (26) The authors briefly trace the history of the appellate courts, reminding the reader that the courts as we know them today did not come into existence until little more than a century ago, with the Evarts Act of 1891. (27) Richman and Reynolds's key observation is that during the judiciary's salad days, judges could decide appeals at their leisure. Indeed, through the middle of the twentieth century, judges provided what we might call traditional appellate review, or what the authors dub the "Learned Hand Treatment" after the famed judge of the Second Circuit, to nearly every case on their docket. (28) Specifically, this meant that appeals were almost universally given oral argument and decided by published opinion, and that law clerks played a limited role in the decisionmaking process. (29)

    But as the authors point out, traditional appellate review soon gave way as the caseload began a period of rapid growth. In 1960 the number of cases filed in the geographic circuit courts was 3,899; (30) by 1970 that figure had swelled to 11, 662; (31) by 1980 it had more than doubled to 23,2000; (32) and by 2010 it had more than doubled again to 55,992.33 The book devotes little space to what caused the expansion, but it briefly identifies a few contributing factors. First, Richman and Reynolds touch on the general growth in population. (34) (Specifically, in 1960 the population of the United States was just under 180 million and within twenty years it had grown to over 225 million. (35)) As the authors succinctly put it, "more people generate more litigation and more economic activity, which in turn creates more and more complex litigation." (36) A second factor is the increased legislative activity of Congress, causing, in turn, an increase in federal law--both in amount and in complexity. (37) And a third factor is the...

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