The view from the trenches: a report on the breakout sessions at the 2005 National Conference on Appellate Justice.

• Author: Hellman, Arthur D.

"The past is a foreign country; they do things differently there." (1) Certainly judges and lawyers did many things differently in 1975, the year of the first National Conference on Appellate Justice. They carried out legal research by poring over digests and reporters, not by scrolling down a screen and following a hyperlink. They dictated briefs and opinions for their secretaries to type rather than drafting their work on personal computers. They communicated by letter and telephone, not email. They waited days or even weeks before they could read a new Supreme Court decision. And when attending a conference, they had to stand in line at a pay phone to call their offices.

The political and societal setting was also different. Richard Nixon had recently resigned as President in the wake of the Watergate scandals. With the signing of the Helsinki accords, Communist regimes in the Soviet Union and Eastern Europe seemed more firmly entrenched than ever. Only fifteen percent of the newly graduated law students were women. CNN and Fox News did not exist, and talk radio was in its infancy.

One thing that has not changed since 1975 is the function of appellate courts. Today, as in the past, that function is twofold: to correct error or unfairness in the work of subordinate tribunals and to publish opinions that will serve as precedents for the decision of future cases.

How have the changes in technology, society, and politics affected the way in which appellate courts carry out the tasks of review for error and lawmaking? That is one of the questions that led four prominent legal organizations to sponsor the 2005 National Conference on Appellate Justice. (2) An important part of the Conference was the breakout sessions in which small groups of judges and lawyers discussed specific issues about the operation of the appellate system. Each group had a discussion leader--a distinguished judge or an experienced appellate lawyer--who was primed to pose questions to the participants to elicit their own perceptions. Each group also had a Reporter--a prominent academic--who was prepared to report the responses. (3) The reports were submitted (some with remarkable promptness!), and they fill a very large three-ring binder. In this Conference Report, I present a summary and synthesis of the main points that emerged from the discussions. (4) To set the stage, I will say a few words about the planning and organization of the 2005 Conference, with emphasis on what might be called (in Hollywood fashion) the 1975 prequel.

1. A TALE OF TWO CONFERENCES

   The first National Conference on Appellate Justice was organized by a group called the Advisory Council for Appellate Justice. The Advisory Council was an ad hoc group composed of some of the most eminent figures on the appellate scene. Most of its members were lawyers and judges (state and federal), not academics. What prompted the 1975 Conference was a widely held belief that the nation's appellate courts--and particularly the federal appellate courts--had reached a state of crisis.

   There is ample evidence of this perception. The leading academic study at that time, published in 1974 and distributed to participants in the 1975 Conference for background reading, had the title Appellate Courts: Staff and Process in the Crisis of Volume. The author was Professor Daniel J. Meador, already one of the foremost scholars of appellate systems. The foreword was written by Justice Louis Burke, a member of the California Supreme Court and president of the National Center for State Courts. Justice Burke referred to "the present serious crisis in this country's appellate courts." (5)

   As other Conference materials make clear, this assessment actually rested on two complementary concerns. One is captured by the title of Professor Meador's book: the crisis was a crisis of volume, and the concern centered on the effect of volume on the process of deciding appeals. The Conference preview summarized this theme in its opening pages:

   The situation which calls for a National Conference on Appellate Justice is the staggering inflation in caseload which besets the appellate courts in the United States .... Spreading the efforts of a limited number of judges over a growing number of cases will threaten the quality of the process by making the work of the judges less open and visible, and hence less subject to account, or by increasing a tendency toward delegation of more aspects of judicial work and toward an appellate process that is less humane and more bureaucratic in character. (6) But there was a second theme as well: The surge in the volume of appeals posed a threat not only to the quality of the process, but also to the value of uniformity--the "harmonious and uniform administration of the law." (7) The concern embraced state as well as federal courts. As early as 1965, Professor Geoffrey Hazard expressed the fear that further expansion of the California appellate system would convert "once authoritative appellate tribunals ... into a judicial Tower of Babel." (8) And a few months after the 1975 Conference, the Commission on Revision of the Federal Court Appellate System (Hruska Commission) issued its final report recommending creation of "a new national court of appeals, designed to increase the capacity of the federal judicial system for definitive adjudication of issues of national law." (9)

   At the same time, what stands out in the materials for the 1975 Conference is something that is not there. There is no discussion of the interaction between appellate courts and other institutions of government, nor is there any reference to the effect on appellate courts of the political and societal conflicts of the era. Rather, the 1975 Conference treated the appellate court system as a self-contained universe that existed largely independent of political and social controversies.

   Viewing the appellate scene of today against the background of the 1975 Conference, the Steering Committee for the 2005 Conference identified three broad topics for discussion in the breakout sessions. (10) First, there was the overarching issue raised by the apparent assumption of the 1975 planners that appellate courts carry out their work in isolation from the political and social conflicts of their time. No one today would accept that picture, but has immersion in controversy changed the way appellate courts carry out their business? That is a different, and more difficult, question.

   The second topic centered on precedent and appellate structure. In sharp contrast to 1975, concern about disuniformity in appellate decisions barely registers on the seismometer of legal discourse today. This is particularly remarkable at the federal level, in view of the fact that the only tribunal with authority to resolve conflicts with nationally binding effect--the Supreme Court of the United States--has actually reduced its decisional output to half of what it was in 1975. (11) Is this a problem? And what about uniformity in state systems? Those were among the questions we asked the participants to address.

   Finally, there were the issues of volume, process, and delegation of responsibility that Professor Meador and others were writing about in the 1970s. Since then, although the volume of appeals has continued to increase, the sense of crisis has almost entirely disappeared. There is little outcry over the appellate shortcuts that aroused so much dismay in 1975. We see occasional vigorous debates about particular aspects of the appellate process--in particular, about rules prohibiting the citation of unpublished opinions--but except for one or two academics, no one is arguing that the system needs fundamental change.

   In the pages that follow, I summarize the discussions in the breakout groups on each of these three topics. As one would expect, the focus was on today's practices and problems; comparisons with the past were only secondary. Nevertheless, the contrast between the preoccupations of 1975 and those of 2005 provides a useful framework for the Report.

   Throughout this Report I use quotation marks for comments by participants. These comments should not be taken as verbatim transcriptions of what was said. The words have been filtered through the reports of the individual Reporters, and, in addition, have been edited for clarity and to avoid identifying the speaker. (12) Nevertheless, use of the quotations preserves some of the immediacy and the informality of the small-group setting. Moreover, I use "quotations" only when the Reporter's account appears to reflect a direct quote or close paraphrase. (13)

2. APPELLATE COURTS AS FLASHPOINTS OF CONTROVERSY

   When Justice William O. Douglas retired late in 1975, his successor, John Paul Stevens, took his oath only three weeks after President Ford announced the nomination. It is hard to imagine such a quick succession happening today. Appellate courts, including the Supreme Court of the United States, have become flashpoints of controversy. In the legislatures, in the media, and on the campaign trail, appellate decisions receive attention and, often, harsh criticism. The public position of appellate courts played no part in the 1975 Conference, but in 2005 the subject generated extensive discussion.

   1. Tensions between Courts and Legislatures

      One prominent manifestation of the controversial position of appellate courts today is the tensions that have developed between courts and legislatures. To be sure, the phenomenon is by no means universal. In some states, as Conference participants reported, "the relationship between legislative and judicial branches is relatively harmonious." But harmony appears to be the exception rather than the rule.

      In jurisdictions across the country, legislators have threatened--or have actually undertaken--to retaliate against appellate courts for their decisions on controversial issues. The issues and the forms of retaliation span the spectrum. Here...