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MEMORANDUM

DATE: November 10, 1998

TO: Members of the Commission on Structural Alternatives for the Federal Courts of Appeals

FROM: Chief Judges Edwards, Torruella, Winter, Becker, Wilkinson, Posner & Bowman

This memorandum, written on our own behalf, is in response to your invitation to comment on the Tentative Draft Report. We address herein only two facets of the Report, the ones that concern us most.

I. The Proposal to Authorize any court of appeals with more than thirteen judgeships, at its option, to organize itself into divisions, and require any court of appeals with more than seventeen judgeships to do so

The Commission's proposal to organize the Ninth Circuit Court of Appeals into regional adjudicative divisions carries with it the prescription for the division, which would be approved by the Congress. In contrast, its suggestion for division of the other courts of appeal is amorphous; presumably the manner of division would be left to the affected court. We view this delegation as a deleterious measure, which would politicize the courts of appeals and divert them from their primary duty of case resolution to collateral political matters. With respect to courts of appeals with less than eighteen judges, we view it as no answer to say that a court of appeals can decline to divide. The problem is that the availability of the division option is a brooding omnipresence that will come up every year or each time a new judge is added and will poison the atmosphere in a collegial court. The Commission's proposal injects a host of highly charged and divisive issues into the midst of a circuit -- namely, the number of judges to serve in a division, the configuration of division lines and boundaries, the frequency with which division lines might shift, and even whether division lines would be tied to state lines or to geography at all. At best, resolving these questions will operate as a drain on and diversion of judicial energies. At worst, it will consume the federal appellate courts in unseemly ideological disputes. If and when the time comes to split a circuit, Congress should do so upon the recommendation of the Judicial Conference. The whole concept of intra-circuit divisions, replete with its two levels of en banc review, has far more drawbacks than benefits.

II. The Proposal to Authorize the judicial council of any circuit to establish district court appellate panels to provide first level review for designated categories of cases that involve error correction with discretionary review in the court of appeals

We believe this proposal to be flawed both conceptually and practically. At the outset we submit that it rests on the flawed premise that cases are easily divisible into two categories: "error correction" cases and those that implicate the declaration of circuit law. In our experience many cases that looked initially like "error correction" cases turn out, upon close scrutiny to implicate declaration of circuit law. You just do not know until you spend the time, and you are often surprised. To be sure the appellate panel could certify them to the court of appeals, but the initial labeling will become a self-fulfilling prophecy.

There is an even greater problem with the proposal -- it protracts the litigation process, adding still another level through which litigation may, and often will, have to proceed. That is expensive to litigants, and unacceptable. It will also be burdensome for the courts, and will likely require another omnibus judgeship bill to create additional district judgeships for appellate purposes, which does not seem to be good public policy. While we do not doubt the ability of district judges to assume what Professor Carrington refers to as "a reviewer's frame of mind," bouncing back and forth between courts is difficult and, at all events, the district judges do not want such a role. The sentiments expressed in response to questionnaires submitted by the Judicial Conference Committee on Long Range Planning and at the retreats conducted by that Committee reflected virtually monolithic opposition by district judges to the proposal, which itself militates against its success.

We urge the Commission to reconsider, and abandon these proposals.

Respectfully submitted,

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Harry T. Edwards

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Juan R. Torruella

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Ralph K. Winter

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Edward R. Becker

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J. Harvie Wilkinson, III

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Richard A. Posner

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Pasco M. Bowman, II

cc: Chief Justice Rehnquist
Leonidas Ralph Mecham, Director, AO
Honorable Rya W. Zobel, Director, FJC