The Association of the Bar of the City of New York (the "Association") respectfully submits the following comments on the Tentative Draft Report (the "Draft Report") of the Commission on Structural Alternatives for the Federal Courts of Appeals (the "Commission").⁽¹⁾

Members of the Association have been involved in appeals in all the federal courts of appeals, and are particularly familiar with the work of the United States Court of Appeals for the Second Circuit. For the reasons summarized below, the Association believes that some of the recommendations suggested in the Draft Report would have a serious adverse impact on the work of the Second Circuit and other federal courts of appeals.

I. The Final Report Should Not Recommend That
All Federal Courts of Appeals Be Empowered or
Required to Split Themselves Into Divisions.

The Draft Report recommends that all federal courts of appeals be authorized to split themselves into two or more divisions, and that all federal courts of appeals with more than 17 authorized judgeships be required to do so. (Draft Report at 52-53, 85-86.) The Association strongly opposes this recommendation.

From the standpoint of its impact on the law of the circuit, as experienced by district courts, litigants, and lawyers, splitting a circuit into divisions is very nearly the functional equivalent of splitting it into separate circuits.⁽²⁾ When applied to a circuit such as the Second Circuit, because of the volume of appeals from the four district courts in New York State, splitting the court of appeals into divisions would require splitting appeals from the district courts in New York State between two or more divisions of the court. The disruptive effect of any such split upon the law of the circuit would be severe.⁽³⁾ The Circuit Division recommended by the Draft Report to resolve inter-division conflicts (Draft Report at 41-42, 85-86) cannot handle more than a tiny fraction of cases within the circuit, and therefore cannot realistically be expected to maintain consistency and coherence among the various divisions of the court. Moreover, adding another tier to the federal appellate structure would increase the cost to litigants and delay the final resolution of cases.

For these reasons, the Association views splitting a court of appeals into divisions as an extreme measure that should be taken only under extraordinary circumstances, and only after all less extreme measures, such as using visiting judges from within and outside the circuit, have been tried and failed. The Association takes no position on the question whether such extraordinary circumstances exist in the Ninth Circuit. However, the Association strongly believes that no such extraordinary circumstances exist in the Second Circuit, and has seen no evidence that they exist in other circuits.⁽⁴⁾

II. The Final Report Should Not Recommend
the Authorization of Two-Judge Panels
and District Court Appellate Panels.

The Draft Report recommends that all federal circuits be authorized to decide cases with panels of only two court of appeals judges, and to create district court appellate panels consisting of one circuit judge and two district judges to decide certain categories of cases which are deemed unworthy of court of appeals review. (Draft Report at 53-56, 85, 86-87.) The Association strongly opposes these recommendations.

The premise underlying both recommendations is that there are certain cases, or certain categories of cases, that do not merit full review by a panel of three court of appeals judges (or two court of appeals judges and one district judge). We disagree with this premise. We believe that, in the oft-reported words of Judge Weinfeld, "There is no such thing as an unimportant case." Almost all cases are important to the litigants, and whether they are important to the jurisprudence of the circuit is a matter that should be determined through a careful review of each case by a three-judge panel including at least two court of appeals judges.

The Draft Report suggests that two-judge panels and District Court Appellate Panels would merely continue a development whereby some cases are decided without oral argument and with relatively brief opinions. (Draft Report at 54.) But even where cases are decided without oral argument or by brief opinions today,⁽⁵⁾ they are decided by three-judge panels that include two court of appeals judges. Reducing panels to two court of appeals judges, or establishing district court appellate panels to replace the courts of appeals for certain categories of cases, would mark a further long step toward the fragmentation of the federal appellate process in a manner likely to reduce the coherence of decisional law.

Such a step should be taken, if at all, only on a circuit-by-circuit basis, and only where a compelling need has been established. The Association does not believe that any such compelling need has been established in the Second Circuit or elsewhere.

III. The Draft Report's Discussion of
Particular Categories of Appeals Is
Premature, and Should Not Be Carried
Forward Into the Final Report.

The Draft Report suggests several different alternatives for handling bankruptcy appeals. (Draft Report at 59-61.) It also suggests that tax appeals, copyright appeals, and Social Security appeals might be redirected to the Federal Circuit. (Draft Report at 63-65.)

The Association views all of these suggestions as premature. Historically, the courts of appeals have played an important role in developing all of the fields of law which are the subjects of these suggestions. To mention only the Second Circuit, judges such as Learned Hand and Henry J. Friendly (not to mention judges still active today) have made significant contributions to the development of bankruptcy, tax, copyright, and Social Security law. The suggestions made in the Draft Report would largely or wholly sacrifice the contributions made by such able generalist judges to the development of the law in these important areas. The Association questions whether a sufficient case has been made for such a significant step, or (in the case of bankruptcy appeals) for rejecting the recommendations of the National Bankruptcy Review Commission, and recommends that the Final Report avoid any suggestions to Congress regarding these areas pending further study.

The Association commends the Commission for the thoughtful survey it has made of the difficult questions committed to it in the very short time made available to it. However, the Association believes that an insufficient case has been made to warrant the sweeping recommendations proposed in the Draft Report concerning circuits other the Ninth Circuit, and strongly urges that those recommendations not be carried forward into the Final Report.

Dated: October 26, 1998


THE ASSOCIATION OF THE BAR
OF THE CITY OF NEW YORK
42 West 44th Street
New York, New York 10036-6689
(212) 382-6700

By:______________________________
Michael A. Cooper
President

By:______________________________
Guy Miller Struve
Chair, Committee on
Federal Courts

1. The Association is an organization of more than 20,000 attorneys, the majority in New York City, but a substantial number in other parts of New York State, other states, and foreign countries. It is devoted to continued enhancement of the legal profession and improvement of the administration of justice. The Association reflects a broad cross-section of the legal profession, including lawyers working in private practice, government, public interest, business, and academia.

2. Historically, splitting a circuit into divisions has been a step toward splitting it into separate circuits, as was the case when the Fifth Circuit was split into the Fifth and Eleventh Circuits. There has been no experience in the federal system with the long-term split of a circuit into divisions.

3. The Draft Report does not make clear whether district courts in one division would be bound by the decisions of another division. (See Draft Report at 41 (stating that "[d]ecisions made in one division would not bind any other division," but not addressing their effect on the district courts).) If not, the functional analogy to a circuit split would be even stronger. If so, a serious new element of unpredictability would be introduced into the law of the circuit, depending upon which division was the first to decide any given question.

4. If any circuit is to be split into divisions, either now or in the future, the Association believes that the advisability and the manner of execution of such a step should be the subject of careful individual consideration by the Judicial Conference and by Congress with respect to each circuit in which it is to be implemented. Therefore, the Association does not believe that it is necessary or appropriate to enact a blanket statutory authorization or requirement for such a step in all federal courts of appeals generally.

5. In the Second Circuit, oral argument remains available in all cases. A substantial number of cases are decided by summary orders, which may not under any circumstances be cited as authority in subsequent cases. This Association has proposed a relaxation of that prohibition. See Report of the Committee on Federal Courts of The Association of the Bar of the City of New York on the Second Circuit's Rule Regarding Citation of Summary Orders, dated July 17, 1998.