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

314 Pages·2012·2.33 MB·English

by  William M. Richman

Injustice on Appeal
INJUSTICE ON APPEAL
The United States Courts of Appeals in Crisis
William M. Richman
Distinguished University Professor of Law
The University of Toledo College of Law
William L. Reynolds
Jacob A. France Professor of Judicial Process
University of Maryland Francis King Carey School of Law
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Library of Congress Cataloging-in-Publication Data
Richman, William M.
Injustice on appeal : The United States Courts of Appeals in Crisis /
William M. Richman,
William L. Reynolds.
p. cm.
Includes bibliographical references and index.
ISBN 978-0-19534207-9 ((hardback) : alk. paper)
1. Appellate courts—United States. 2. Appellate procedure—United States.
I. Reynolds, William L., 1945-II. Title.
KF8750.R53 2013
347.73′8—dc23
2012022806
9 8 7 6 5 4 3 2 1
Printed in the United States of America on acid-free paper
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For Carol, for always.
W.M.R.
To my children, Bill, Megan, and Sarah
W.L.R.
CONTENTS
Preface
Introduction
Chapter 1: A Brief History of the Circuit Courts
Chapter 2: The Publication Plans
Chapter 3: The Premises of the Argument for Limited Publication
Chapter 4: The Counter-Arguments
Chapter 5: The Life and Death of the No-Citation Rules
Chapter 6: The Constitution and Unpublished Opinions
Chapter 7: Restricting Oral Argument
Chapter 8: Additional Decision Makers: Deciding by Bureaucracy
Chapter 9: The Cumulative Effect of the Appellate Triage Regime
Chapter 10: Commissions, Studies, Reports, and Proposals
Chapter 11: The Obvious Solution and the Judicial Opposition
Chapter 12: The Need for a Small Federal Judiciary: Reasons, Arguments, and
Refutations
Chapter 13: Jurisdictional Retrenchment: Of Babies and Bath Water
Chapter 14: Elitism and Diversity
Conclusion
Index
PREFACE
This book examines the background and consequences of shortcuts in case
processing adopted by the federal circuit courts over the past forty years. These
shortcuts, which we call collectively “Appellate Triage,”1 include unpublished
opinions that lack precedential value and that could not be cited (until 2006);
reduction in the frequency of oral argument; and the delegation of great
quantities of decision-making authority to central staff. Today, the vast majority
of cases resolved by the circuit courts are decided using those shortcuts. The
burden of those changes has fallen largely on the disfavored in our society.
We began writing in this area more than a third of a century ago. We started
by examining unpublished opinions, their nonprecedential status, and the
prohibitions on citation to them. Soon, we realized that the problem also
included the elimination of oral argument and the growth of central staff. We
then wondered why the obvious solution to the caseload problem—more judges
—had not been adopted. That led us to examine the judges’ arguments for their
refusal to ask Congress for additional judgeships and the reasons they have
systematically discounted the large body of empirical evidence that refutes those
arguments. More recently we began to notice that the judges, having succeeded
in restricting the size of the bench, have ceased even to discuss the issue in
public. Our thirty-plus years of study have left us with anger and despair over
the creation and jealous maintenance of a system that underserves the nation and
shortchanges the poor and powerless.
We thank both of our schools for generously supporting our work on this
book and the studies that preceded it. That support has been both intangible and
tangible, with the latter in the form of research grants and research assistance.
We are also grateful to the many scholars and judges around the country who
have contributed to the body of commentary in the area; many of them have also
have had kind words to say of our work.
Special thanks to Susan McCarty, Senior Research Librarian at the
University of Maryland School of Law for her splendid editorial assistance, and
to Yvonne McMorris, also of Maryland, for her cheerful and patient assistance.
Also thanks to University of Toledo College of Law students, Wyatt Holliday,
Sydney Leavitt, and Michelle Tussing, for valuable help in the final stages of
preparation of the book, and to Diane Bohn for patient administrative assistance.
We are grateful, as well, to our editors at Oxford University Press for their
patience and support. Finally, we express our gratitude to our families for their
patient encouragement and support during the preparation of this book and the
thirty-some years of study that preceded it.