The Balkanization of Appellate Justice: The Proliferation of Local Rules in the Federal Circuits
in the University of Colorado Law Review, Vol. 68, No. 1 (1997).
Posted: 11 Jun 1997
This article examines the tremendous growth of federal circuit court rules and the implications both for federal appellate practice and for the intergrity of the federal appellate system. In the waning years of the twentieth century, the leading story of federal procedure is one of growing disunity in practice and fragmentation in rules. A little more than half a century after federal procedure was unified in 1938 with the adoption of the Federal Rules of Civil Procedure, the federal judicial system appears to be de-evolving into a collection of largely autonomous court units with separate procedural regimes. Instead of a unitary court system, joined together in a common procedural enterprise, each district and each circuit has become its own fiefdom with its own rules governing the progress and disposition of litigation.The federal courts of appeals have not been immune from this centrifugal procedural tendency. The proliferation of conflicting circuit rules has impaired the uniformity of federal appellate procedure and unnecessarily complicated appellate practice, while destroying the unity of the appellate system. In addition to standing as an obstacle to the efficient representation of clients and denying justice in individual cases, the growth of local circuit rules conveys an unmistakable symbolic message of disunity among the federal appellate courts. The article concludes that the Supreme Court, the Judicial Conference, the individual circuits, and if necessary, Congress, should reaffirm the primacy of the Federal Rules of Appellate Procedure and bring local circuit rules into harmony with its objectives.
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