The Decision Making Process in Federal Courts of Appeals

One hundred years after the creation of the United States Circuit Courts of Appeals, lawyers and judges are now engaged in a rising debate about the process of decision making in those courts.Surging case loads for the past 25 years mean that these courts have more judges, more decisions to work on, and less time to spend on each case.The recent well-publicized report of the Federal Courts Study Committee-a distinguished group composed of senators, congressmen, judges and lawyers--calls the present situation in the Courts of Appeals a "crisis"-one "that has transformed them from the institutions they were a generation ago."' This study suggests the demise of the old Cardozo and Hand model of appellate decision making.This model of analytically careful and lucidly written opinions issued after full oral argument and profound consideration of all issues is the benchmark of judicial performance.2 Lamenting the present and predicting a further decline in judicial performance, the Committee asks: "[W]ill oral argument and reasoned opinions simply fade away .?"3 The Committee suggests that we may have to bureaucratize further the appellate process with a new four-tiered system or national subject-matter courts of appeals, or consolidated "jumbo" circuits.The Committee's voice in the wilderness is not the only one.In a recent paper delivered at a symposium on the federal courts, Professor Lauren Robel expressed a similar critical view, reflecting what appears to be the beginning of a consensus among a number of knowledgeable judges and academics.4 Supporters of the consensus often cite as primary authority the second chapter, entitled "Consequences," of Judge Posner's recent study, Federal Courts: Crisis and Reform, in which Posner compiled many distressing statistics about federal courts and their work load.5 Critics usually cite three trends as evidence of the decline in the quality of judicial decision making: first, that the judges allow elbow and staff law clerks * Chief Judge, United States Court of Appeals for the Sixth Circuit.