Commission on Structural Alternatives
for the Federal Courts of Appeals
Thurgood Marshall Federal Judicial Building
One Columbus Circle, N.E.
Washington, DC 20544

Dear Ladies and Gentlemen:

I would like to comment upon certain aspects of your highly interesting Tentative Draft Report. My comments deal with only certain parts of the draft, and these are parts with which I respectfully disagree.

Splitting the Courts of Appeals Into Divisions

I can conceive of no real merit in the idea of splitting the courts of appeals into divisions. Of course, right now the intermediate appellate process in the United States is "split," in the sense that there are eleven circuits. This produces a certain amount of conflict in federal law, all of which is surely not resolved by the Supreme Court. Over time there may be additional circuits, although increasing circuits has been handled cautiously and slowly for good reason.

But the creation of divisions within circuits threatens a far greater magnitude of conflict in federal law then now exists, or is likely to exist with the creation of additional circuits slowly from time to time. What is produced by eleven circuits, or thereabouts, is a far different matter from whatever might emerge from the creation of 18, or 25, or 30 or more divisions.

The Tentative Draft suggests that inter-division conflicts can be resolved by a Circuit Division. But this adds another layer of review, with the attendant expense and burden to litigants. We should not foster greatly increased conflicts and hope that litigants will take an added step in the appeal process to resolve them.

Two-Judge Panels

I believe that the concept of separating less important cases from more important ones, with the less being given two judges, demeans the appellate process and requires a kind of classification which is really hopeless from a practical standpoint. A case can turn from a seemingly simple one to a complex one at any time, including at argument.

District Court Appellate Panels

The draft suggests the creation in each circuit of a "District Court Appellate Panel Service." The panels would consist of two district judges and one circuit judge. This proposal again demeans the federal appellate process. Individual cases can turn out to be relatively simple or highly complex, but the structure of the federal appellate courts should be looked at by viewing the overall mission of these courts. This mission is simply a different one from that of the trial courts. Federal appeals should be heard as much as possible by judges who are appointed to be court of appeals judges, and who have a continuing duty to act in this role. Moreover, if the Southern District of New York is any example, district judges have an ample workload without getting involved in substantial duties on appellate panels.

Very truly yours,

Thomas P. Griesa