Vol. 1 No. 2 (April, 1991) pp. 30-34
RESTRUCTURING JUSTICE: THE INNOVATIONS OF THE NINTH CIRCUIT AND
THE FUTURE OF THE FEDERAL COURTS by Arthur D. Hellman (Editor).
Ithaca: Cornell University Press, l99O. 385 pp. Cloth $42.50.
Paper $13.95.
Reviewed by Sheldon Goldman, Department of Political Science, The
University of Massachusetts at Amherst
James R. Browning was appointed to the U.S. Court of Appeals for
the Ninth Circuit by President John F. Kennedy in 1961 despite a
Not Qualified rating from the American Bar Association and an
attempt by Justice Felix Frankfurter to prevent the nomination.
What Browning had going for him (aside from previous experience
as an effective Justice Department lawyer) was that he was a
liberal Democrat with a record of Democratic Party support and
the backing not only of his Senators (who gave their approval to
Browning and Russell Smith leaving the choice to the Justice
Department) but the active efforts of the influential former
Justice Department official James Rowe who personally intervened
with Attorney General Robert Kennedy. Happily, it turns out that
the ABA was dead wrong and not only has Judge Browning been a
distinguished jurist, but as Chief Judge of the nation's largest
circuit from 1976-1988 he was an innovative and creative judicial
administrator. In the foreword to this volume Chief Justice
William H. Rehnquist praises Judge Browning for his "vision
and leadership."
This book is a collection of fourteen essays by nine law
professors and five political scientists that is devoted to the
subject of judicial administration with a special focus on the
innovations from the Browning years. Its subtext asks the
question whether supporters of dividing the Ninth Circuit who
argue that the circuit is too large and ungovernable have a good
case or are off base. Arthur D. Hellman, professor of law at the
University of Pittsburgh School of Law, not only edited the
volume but is author of two of the fourteen chapters. The book is
organized into seven parts and Hellman provides introductions to
the essays. Hellman in the preface tells us why judicial
administra- tion is important and is inextricably involved with
judicial decisionmaking ("The structures and procedures of
our court systems help to determine how, when, and by whom
disputes will be resolved"). Hellman and his collaborators
received "the full cooperation of the judges and staff of
the Ninth Circuit" (p. 19). This meant that the authors had
access to the "massive database already in existence as part
of the Ninth Circuit's case-processing programs" (p. 19).
Additionally, the authors had access to "internal
documents" to help them evaluate the Ninth Circuit's work.
Perhaps one consequence of this official cooperation is that very
little in this volume is explicitly negative about the Ninth
Circuit and its innovations although the authors do make
suggestions for improvements. There is also no explicit support
given for the idea of dividing the Ninth into two new circuits.
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Appropriately enough Hellman is the author of the chapter in Part
One that sets out the institutional history and setting for the
innovations of the Browning years. In Part Two, Maurice Rosenberg
examines the adjudication history of the Browning period in terms
of the efforts of Ninth Circuit judges to clarify "standards
of review" (the title of his chapter). Rosenberg confides
that he originally sought to assess the review standards of the
circuit and to determine whether they succeeded in shrink- ing
"hopeless appeals." But alas, he was unable to amass
the data and was thus forced to make his assessment on the basis
of "indirect evidence," and "inferences ...
derived from the text of the standards, the cases applying them,
and conversations with a sampling of judges and lawyers." (p
31). The result is a techni- cal legalistic analysis that should
be of interest to those in this legal area. He concludes that
"in the main the court of appeals has done a good job of
articulating plainly the standards of review it applies "
(p. 53).
The other chapter in Part Two is by Arthur Hellman and is
concerned with the extremely important and sensitive task of
maintaining consistency in panel decisions. Maintaining consis-
tency is certainly a tall order not only for such a large cir-
cuit, but one whose membership includes liberal activists ap-
pointed by Jimmy Carter and social agenda conservatives appointed
by Ronald Reagan. (This latter consideration goes virtually
unmentioned in this volume; perhaps the price of official cooper-
ation is also a blind eye to the politics of the judiciary).
Hellman reports that in a survey of the Ninth Circuit Judicial
Conference done for this project some two-thirds of the district
judge members and a higher proportion of lawyer members saw the
circuit generally failing to resolve intra-circuit conflicts. But
only two of the 21 circuit judges responding to the survey agreed
with this assessment. Hellman, of course, offers his own
evaluation which ultimately agrees with the large majority of the
circuit judges. Hellman devotes special attention to the major
innovation of the limited en banc panel. He also conducted an
analysis based only on published opinions which he himself
recognizes is a limitation. (Hellman expresses the "hope
that some other scholar will take a look at the unpublished
opinions in the not-too-distant future." [p 89].)
The chapters in Part Three examine the innovations meant to cope
with extreme volume stress on the circuit. John B. Oakley and
Robert S. Thompson look at the screening process on the Ninth
Circuit instituted at the start of 1982, whereby staff attorneys
analyze the briefs and flag cases with jurisdictional defects,
code issues to enable the grouping of similar cases, and weight
the cases as to difficulty and complexity. Cases with low weights
are assigned to screening panels whereas those with higher
weights go to oral argument panels. A staff attorney prepares a
bench memorandum (in effect, a draft of an opinion) that
accompanies the case to the screening panel for decision. Each
decision of the screening panel must be unanimous, otherwise the
case is rescheduled for oral argument. Any judge on the screening
panel is free to reject a case and to reroute it to an argument
panel. About 2O percent of the cases are actually disposed of by
screening panels. How do the screened cases compare to cases that
go to argument panels? Oakley and Thompson provide such an
analysis using as their source the Ninth Circuit's extensive
docketing database.
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Jerry Goldman examines the implications of the screening process.
Like a breath of fresh air, Goldman brings a social science
perspective to his analysis. Goldman points out that aside from
the absence of oral argument but with heavy reliance on staff
attorneys, screening panels are characterized by their
non-rotating composition and by the absence of face-to-face
conferences all of which could have profound affect on group
decisionmaking. But do they? Goldman tested for this by compar-
ing approximately 1000 cases with low weights that were trans-
ferred to argument panels to cases with comparable low weights
decided by the screening process. He found nearly identical
relief rates but a markedly higher publication rate for argument
panel decisions. Goldman also conducted a small-scale survey of
appellants to examine the perceptions of legitimacy of appellants
whose cases were decided by argument panels as opposed to screen-
ing panels. There was greater dissatisfaction of appellants with
the screening panels. Goldman warns that "screening takes
its toll on procedural fairness" (p.163) and suggests ways,
aside from oral argument, for the circuit to remedy this problem.
In 1978 the Ninth Circuit began utilizing an alternative method
for processing bankruptcy appeals from bankruptcy judge rulings,
a Bankruptcy Appellate Panel (BAP), consisting of a specialist
panel of bankruptcy judges. BAP is an alternative to the regular
method of district courts reviewing bankruptcy judge rulings.
Michael A. Berch evaluates the BAP and pronounces it a smashing
success.
In Part Four, Daniel J. Meador's essay on "Struggling
against the Tower of Babel'' is concerned with maintaining
doctrinal consistency in the nation's largest circuit. Meador
concludes that specialized appellate panels modeled after the BAP
may be the only way out of the Tower of Babel. Paul D. Carring-
ton in his essay refers to the Ninth Circuit as "An Unknown
Court" because, as he delicately puts it, "the
individuality" of the large number of Ninth Circuit judges
who are shuffled around randomly in changing panels of three,
makes it difficult for lawyers to predict "appellate
outcomes." The "individuality" of the judges
"will materially influence the decision on reasonably close
questions of characterization and interpretation." (p. 2O9).
But for Carrington this is not good because that only encourages
appeals and floods the circuit with excess volume. A better
solution is for predictability, he suggests, such as non-
rotating panels assigned to oversee the work of individual
district court judges. (God help the ACLU lawyer whose fixed
panel consists of all Reagan appointees!). Carrington's other
"helpful" suggestions include having these panels
generally not write opinions but make their decisions on the spot
aided by central staff memoranda. What a perfect world for the
Reagan-- Bush social agenda folks -- a right-wing pc court with
virtually no accountability.
Part Five is taken over by political scientists. Thomas W.
Church, Jr., focuses on court management as contrasted with case
management, that is, on circuit governance, administration, and
support services. He looks at the move toward decentralized
administration, the court clerk's office and staff attorneys, the
administrative chief judges, and the executive committee of the
court, of appeals. Doris Marie Provine's chapter is entitled
"Governing the Ungovernable: The Theory and Practice of
Gover- nance in the Ninth
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Circuit," which is concerned with the circuit council and
confer- ence and the attempts to democratize these institutions.
Like Church, Provine relied on extensive interviewing of Ninth
Circuit personnel and on internal court documents. Provine
reviews the steps taken by Chief Justice Browning to bring about
greater district judge participation in circuit governance.
Stephen L. Wasby's attention is given to the role of the bar in
governing the circuit, particularly in the circuit judicial
conference, conference committees, and in the districts. Among
his many findings are that white male lawyers from the big
downtown firms are over-represented but that women lawyers'
participation has increased. Black and Hispanic lawyers are
"few and far between," as are criminal defense and
civil rights lawyers and public interest and labor lawyers. But
Wasby concludes that "Serious efforts ...continue to be
made, to involve the bar in circuit governance and to facilitate
lawyers' participation so that their place in the circuit
conference will be a meaningful, not merely a symbolic,
one." Yet "it cannot really be said that the Ninth
Circuit has yet succeeded in securing genuine participation by
the bar in circuit governance." (p. 317) Nevertheless,
lawyer participation "serves to bind the circuit
together" integrating this important constituency within the
circuit system.
Part Six is devoted to two essays that reflect on the Ninth
Circuit experience. Judith Resnik nicely summarizes the studies
from Part Five and offers her own thoughts. Resnik correctly
questions a recommendation of the Judicial Council of the Ninth
Circuit that the United States Judicial Conference consider the
elimination of the right to an appeal and allow the circuits to
control their dockets. This would mean that the decision of a
lone federal district judge would for most intents and purposes
be the end of the legal line for cases not accepted for appeal.
Resnik points out that adoption of such a proposal would concen-
trate "substantial power in the first tier of decision
making." (p 329). She also perceptively notes that
"Questions about the governance, structure, and mission of
the Ninth Circuit are inevitably part of questions about the
governance, structure, and mission of the entire system of which
it is a part " (pp. 329-- 330). A. Leo Levin also offers his
reflections and focuses on both successes and remaining problems.
He explicitly confronts the move to divide the Ninth Circuit but
begs off taking a position because the "issues are complex,
and it would be inap- propriate, within the compass of this
chapter, to attempt a detailed analysis." (p. 338). Levin
praises Browning for his innovations and especially for promoting
"the core values of openness, of consultation, of widespread
participation in the decision~making process " (p. 341). The
book ends with a tribute to Judge Browning by John R. Schmid-
hauser. Schmidhauser's essay provides a brief history of the
Ninth Circuit, a short biography of Judge Browning that discreet-
ly leaves unmentioned the opposition to Browning's initial
appointment as reported in the first paragraph of this review,
Browning's leadership on the circuit, and his administrative
accomplishments. Schmidhauser provides a capsule account of the
battle to prevent splitting the Ninth Circuit and Judge
Browning's leadership in that battle.
The book has a remarkable unity of purpose and many of the
different authors refer to the findings of other authors in the
volume. One has the impression that each author read the work of
the others and this makes for a more cohesive book and represents
a genuine dialogue among the contributors. Arthur
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Hellman's introductions are helpful and to the point. This book
is essential reading for students of judicial administration and
also for both supporters and opponents of the proposal to divide
the Ninth Circuit. The administrative innovations discussed
should be of great interest to judicial administrators in other
federal courts and in the state courts. The subject matter may
appear dry but much is at stake and, as a general rule, the
authors do justice to the material.
Copyright 1991