A Federal Appellate System for the Twenty-First Century

In December 1998, the Commission on Structural Alternatives for the Federal Courts of Appeals issued a report and recommendations for Congress and the President. The commission resulted from ongoing controversy over splitting the U.S. Court of Appeals for the Ninth Circuit The commissioners clearly suggested that the circuit remain intact but proposed three regionally based adjudicative divisions for the appeals court. However, the commission did not adduce persuasive empirical evidence that the Ninth Circuit experiences difficulties that are sufficiently problematic to warrant treatment, particularly with the essentially untested divisional arrangement Accordingly, the Ninth Circuit should continue to experiment with promising measures. The Commission on Structural Alternatives for the Federal Courts of Appeals recently issued its report on the intermediate appellate courts and recommendations for their improvement and submitted the report and suggestions to Congress and the President. 1 This commission, which Congress authorized the Chief Justice of the United States to appoint a year ago, had an invaluable opportunity to assess the appeals courts and develop helpful proposals for change and, thus, to influence appellate justice as the twenty-first century opens. The commission resulted from lengthy, continuing controversy over the advisability of dividing the U.S. Court of Appeals for the Ninth Circuit. The commissioners clearly and strongly rejected the idea of splitting the Ninth Circuit and endorsed the alternative of creating adjudicative divisions for the Ninth Circuit now and for the remaining circuits as they increase in size. The publication of the commission's report and recommendations is significant because the appeals courts are at a critical juncture. The federal appellate system has served Congress, the federal courts, and the nation very well for more than a century. However, the circuits have experienced a striking increase in appeals, which has transformed the courts since the 1970s; this crisis of volume could threaten the system. * Professor of Law, William S. Boyd School of Law, University of Nevada, Las Vegas. I wish to thank Peggy Sanner for valuable suggestions and Eleanor Davison for processing this piece. Errors that remain are mine. 1. Commission on Structural Alternatives for the Federal Courts of Appeals, Final Report (Dec. 1998), available in [hereinafter Commission Report].