Archive
To: Commission on Structural Alternatives for the Federal
Courts of Appeals
From: Gary Greenberg, Chair
Committee on Appellate Courts, New York County Lawyers' Association
Date: November 6, 1998
Re: Comments on Tentative Draft Report dated October 7, 1998
________________________________________________________________
The Committee limits its remarks to those sections of the draft report which would
directly impact on the Court of Appeals for the Second Circuit, which includes New York State.
Thus, we do not comment on the proposal for divisional organization of the larger
Circuits which affects only a Court of Appeals having more than thirteen authorized judgeships
(the Second Circuit currently has 13).
Two-Judge Panels
We oppose the proposal to permit appeals to be determined by two-judge panels.
- A two-judge panel fosters undesirable public perceptions: of reduced access to the
courts, that cases assigned to two-judge panels are inferior, or pre-determined.
- The loss of diversity. Each judge brings a unique background and perspective to
an appeal. That diversity is diminished by smaller panels.
- The dynamic of the process would be fundamentally altered--there would be less
discussion and a greater danger that a judge with a strong personality or seniority
could receive undue deference.
District Court Appellate Panels
We oppose the proposal to create district court appellate panels.
- The skills, demeanor, temperament, etc. of a successful trial judge are not
necessarily the same as those of a good appellate judge. A trial judge ordinarily
must apply the law as it is; the appellate judge applies the law and makes policy.
We question the wisdom of having circuit policy made by district judges.
- The DCAP selection process would presumably lack the same rigors applied to
the selection of circuit court judges.
- Cases assigned to DCAP would be presumed to be pre-judged or of "second-class" status and could erode confidence in the fairness of the appellate process.
- We question the wisdom of alleviating the pressure of large caseloads by
transferring the problem from the circuit to the district courts.
Respectfully submitted,
Gary Greenberg, Chair
Committee on Appellate Courts
New York County Lawyers' Association
c/o Orans, Elsen & Lupert
One Rockefeller Plaza
New York, NY 10020
Tel: 212-586-2211
Fax: 212-765-3662
E-mail: ggreenberg@oellaw.com