Document Type

Article

Disciplines

Civil Procedure | Courts | Rule of Law

Abstract

We should be wary of reforms that are attractive in terms of saving time but have unnoticed substantive effects. . . . The great end for which courts are created is not efficiency. It is justice.

Charles Alan Wright (1966)1

Some of the most significant—and by some estimations the most controversial— transformations of the federal appellate system occurred in the late 1960s and 1970s. Many of the effects are still felt today, including the shift from oral argument for all appeals and the view that study and disposition of each appeal were exclusively judicial tasks, to the adoption of a tiered appellate system where the great majority of appeals receive no oral argument and instead receive summary disposition often involving staff attorneys. These transformative internal efficiency procedures have been the subject of intense debate. Proponents have praised their efficiency and ability to avoid a backlog while critics complain that the procedures created a bureaucratic appellate process—rather than one focused on justice—and instituted an inequitable multi-tiered process that particularly disadvantages novice and unrepresented litigants. This Article employs a previously unexplored approach to assess the merit of this transformed appellate structure. It argues that the foundation of circuit courts’ case management procedures—focusing on oral argument screening and reliance on staff attorneys—rests on an irreplicable and inapplicable model. The reforms arose in the unique context of a circuit defensively fending off a circuit split and that had shifted its focus to appellate efficiency instead of retaining its prior emphasis on rule-of-law enforcement.

This Article examines the formative first mover on these central efficiency reforms that had national ramifications: the Fifth Circuit, which was the largest and most docket-heavy circuit. The then six-state Fifth Circuit initiated screening of each appeal to determine if it merited oral argument, placing no-oral-argument cases on a summary calendar for disposition, issuing a one-word affirmance without an opinion, creating the position of staff attorney, and subsequently increasing reliance on staff attorneys for screening and dispositional tasks.

This Article adds three previously unexamined or underexamined central facets to the debate concerning the use of these internal case processing procedures that continue to structure federal appeals: (1) recognizing the Fifth Circuit’s influence as the initiator and selector of the reform structure adopted by circuit courts nationally, (2) contending that the Fifth Circuit structure of internal efficiency reforms was an incorrect model for replication based on its unique experience as the subject of an ongoing and divisive battle concerning a potential circuit split and fights over the court’s judicial appointments, which shaped the internally focused, defensive, and narrow structure of its reforms, and (3) appreciating how Fifth Circuit judges’ laudable approach and attitude towards procedural innovation in the 1950s to 1970s in civil rights jurisprudence to ensure compliance with Brown v. Board of Education informed how the Court shaped its internal efficiency reforms. The Article thus proposes a reconsideration of the foundational structure of the circuit courts’ internal management processes, which relies on well-worn practices of broad screening and heavy use of staff attorneys. Instead, the Article encourages consideration of a broader array of reform possibilities with the primary aim of promoting justice instead of the lesser goal of judicial efficiency.

1Charles Alan Wright, The Federal Courts—A Century After Appomattox, 52 A.B.A. J. 742, 747 (1966).

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