Judging Justice on Appeal
Marin K. Levy
Duke University School of Law
May 29, 2014
123 Yale Law Journal 2386 (2014)
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. Whereas in 1950 circuit judges had to review an average of only 73 appeals, their modern counterparts must decide more than four times as many, with an average of 329 appeals per annum today. Attempts to assess and ameliorate this crisis have come from the bench, bar, and academy. Yet 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, 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. Their recent book, Injustice on Appeal: The United States Courts of Appeals in Crisis, stands as a culmination of their earlier work, 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 Essay 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no oral argument, have their cases worked up primarily by staff attorneys, and then have their cases disposed of via unpublished order or summary judgment. Injustice delineates the losses associated with each of these case-management developments.
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. 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. Barring an explanation of why the motivations of both branches have changed, 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) any time soon.
The final Part of the Essay 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.
The Essay 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?
Number of Pages in PDF File: 36
Keywords: courts, justice, judges, federal courts of appeals, judicial administration
Date posted: June 2, 2014
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