Weis, Joseph F., Jr.

Digital Commons at St. Mary's University, San Antonio

St. Mary's Law Journal Volume 21 Number 1 Article 3 1-1-1989 The Federal Courts Study Committee Begins Its Work. Joseph F. Weis Jr. Follow this and additional works at: https://commons.stmarytx.edu/thestmaryslawjournal  Part of the Environmental Law Commons, Health Law and Policy Commons, Immigration Law Commons, Jurisprudence Commons, Law and Society Commons, Legal Ethics and Professional Responsibility Commons, Military, War, and Peace Commons, Oil, Gas, and Mineral Law Commons, and the State and Local Government Law Commons Recommended Citation Joseph F. Weis Jr., The Federal Courts Study Committee Begins Its Work., 21 ST. MARY'S L.J. (1989). Available at: https://commons.stmarytx.edu/thestmaryslawjournal/vol21/iss1/3 This Article is brought to you for free and open access by the St. Mary's Law Journals at Digital Commons at St. Mary's University. It has been accepted for inclusion in St. Mary's Law Journal by an authorized editor of Digital Commons at St. Mary's University. For more information, please contact sfowler@stmarytx.edu. THE FEDERAL COURTS STUDY COMMITTEEBEGINS ITS WORKHONORABLE JOSEPH F. WEIS, JR.*Bringing federal court modernization before this group brings tomind Yogi Berra's classic comment, "It's d6jA vu all over again." Butcourt reform generally moves at a snail's pace-persistence and repe-tition are seemingly inevitable in the process.The idea of a federal courts study committee is not a novel one. Inthe last 10 years, the concept has been the subject of various bills inCongress and has been discussed regularly at these conferences. Atthe close of the session in the autumn of 1988, Congress finally cre-ated the Federal Courts Study Committee. This committee differs insome respects from the earlier proposals for a commission. Thus, anydiscussion of the new committee should begin with the language ofthe enacting statute.The committee is established within the judicial conference-not asan independent body. However, in addition to trial and appellatejudges, its membership includes practitioners of the bar and membersof Congress. Recognized experts in the field, Senators Howell Heflin(D-Ala.) and Charles Grassley (R-Iowa) of the Senate Judiciary Com-mittee and Representatives Robert Kastenmeier (D-Wis.) and CarlosMoorehead (R-Cal.) of the House Judiciary Committee are activemembers of the group.As stated in the statute,' the committee's purposes are to:1. Examine problems and issues currently facing the courts of theUnited States;2. Develop a long-range plan for the future of the federal judiciary,including assessments involving-(A) Alternate methods of dispute resolution;(B) The structure and administration of the federal court system;* Circuit Judge, 3rd Circuit. Judge Weis delivered this speech at the Eleventh Seminaron the Administration of Justice sponsored by the Brookings Institute on Saturday, April1989.1. Pub. L. No. 100-702, § 102, 102 STAT. 4644 (1988)(codified at 28 U.S.C. § 331).1Weis: The Federal Courts Study Committee Begins Its Work.Published by Digital Commons at St. Mary's University,ST. MAR Y'S LAW JOURNAL(C) Methods of resolving intracircuit and intercircuit conflicts in thecourts of appeals; and(D) The types of disputes resolved by federal courts.The committee is instructed to "make a complete study of thecourts of the United States and of the several states" and to submit areport by April 1, 1990 to the President, the Chief Justice, the Con-gress, the Judicial Conference of the United States, the Conference ofChief Justices, and the State Justice Institute.2 The report is to rec-ommend revisions to the laws of the United States, to develop a long-range plan for the judicial system, and to make such other recommen-dations and conclusions as the committee deems advisable.'Unlike former study groups which concentrated on the courts ofappeals or the Supreme Court, this committee is to focus its attentionon a broad plan for the federal judiciary as a whole, emphasizing thespecific areas noted above.Obviously, developing a long-range plan requires a study of whatthe courts are doing at the present time. Also necessary is some seri-ous thought on the role of the courts, and what that role should be.These roles are not necessarily the same.Because the committee must consider issues confronting the courts,our first three months were devoted to identifying the problems to beaddressed. Work began with a broad solicitation of views on the is-sues by:1. Surveying all members of the federal judiciary;2. Inviting suggestions from an extensive range of organizations in-cluding citizen groups, bar organizations, research groups, academics,civil rights interests and others;3. Contacting all federal court administrators, chief probation officers,pre-trial services chiefs, and federal public defenders.In addition, we sought and received a number of suggestions fromboth the Administrative Office of the United States Courts and theFederal Judicial Center. We also invited comments from all lawschool deans.The committee held four public hearings in various cities across thenation, receiving testimony from seventy-five quite diverse witnesses.2. Id. § 105(1).3. Id. § 105(2)-(4).[Vol. 21:152St. Mary's Law Journal, Vol. 21 [], No. 1, Art. 3https://commons.stmarytx.edu/thestmaryslawjournal/vol21/iss1/3FEDERAL COURTS STUDY COMMITTEEThe committee has also received a fairly steady stream of public com-ment in the media.Several organizations are preparing issue focus studies for us. Forexample, the Carnegie Foundation will present a paper on science andtechnology issues affecting the courts. The Center for Public ServiceResources in New York is preparing a presentation on alternative dis-pute resolution issues.We are engaged in dialogues with the State Justice Institute and theAmerican Judicature Society, and will be accepting offers of assist-ance from the National Institute of Justice, the National Center forState Courts, the Conference of State Chief Justices, and others. Wewill coordinate our efforts with a number of other programs such asthe Senate Judiciary Committee's Civil Litigation Project.The full committee has divided its work internally by forming threesubcommittees, assisted by a number of able reporters from academia,experts from the Federal Judicial Center and staff members from con-gressional committees. A small but dedicated and hard-working cen-tral staff has exerted untiring effort on behalf of the committee.Because, to this point, the committee has been engaged almost ex-clusively in defining the issues for study, it has not taken any positionon the policies it will recommend or even what subjects it can addressin the limited time available. The comments that follow in these briefremarks, therefore, express some of my own, very tentative views anddo not necessarily reflect those of the committee.In the early 1950s, Justice Frankfurter expressed his concern overthe detrimental effect of increasing the size of the federal judiciary,but little heed was paid to his warnings. In the 1970s, Judge Friendlyand others spoke of an inevitable loss of quality in product and confi-dence in the federal courts if growth continued unabated. But again,few listened.The Freund Commission, a Department of Justice study, and theHruska Commission proposed changes primarily to assist theSupreme Court and the courts of appeals. Opposition by both benchand bar succeeded in turning away some of the major proposals.But growth continued and, indeed, accelerated. The gloomy pre-dictions of the past have proved to prophetic: the federal courts havealready exceeded the size many thought to be desirable. The futurelooks no brighter.The Administrative Office of the Federal Courts recent projection isthat by the year 2000 (only 11 years from now), filings in the courts of1989]3Weis: The Federal Courts Study Committee Begins Its Work.Published by Digital Commons at St. Mary's University,ST MAR Y'S LAW JOURNALappeals will increase 76% over the number of appeals in 1988. Letme amplify that statistic. In 1972 there were 14,534 filings in thecourts of appeals; in the year 2000, only 28 years later, it is predictedthat appeals will number 66,000-an increase of more than 400%. Inthe year 2000, filings in the district courts will soar 63% from the1988 levels, and the bankruptcy filings will swell by 152%.Assuming that a continuing increase at this rate is unacceptable, itis obvious that we have a problem. Essentially, what has happened inthe 100 years, and particularly in the last 30, is that the pendulum hasswung in the direction of increasing the burden on the federal courts.Although the first judiciary act may have given too little jurisdictionto the federal courts, they now have too much to do.Long-range planning for the federal courts must accept the premisethat litigation growth will parallel the rise in population. Legal dis-putes must be adjudicated in one of two forums-the federal or thestate courts. The division of litigation between those two systems willhave a direct bearing on the size of the federal courts and most cer-tainly an impact on their mission. In the past, increases in case loadwere met by adding additional judges. This, however, is not the opti-mal solution for our overload in the long range.There may be some room for increased efficiency in the methodscourts use to process their work, and here we can assess the potentialfor alternative dispute resolution. But frankly, I think the gains inthis area will be limited.I doubt very much that any change in appellate procedures couldallow the courts of appeals to absorb a 70% increase in filings withoutrestructuring or adding a substantial number of new judges.Automation can speed the transmission of needed information tothe judge's desk and eliminate some slippage in the processing of ap-peals. However, the critical element-reasoned deliberation by thejudge-is the factor that will be impaired by further increases in vol-ume. Attacking large numbers of cases by increasing staff cannot helpbut move decision-making away from the intense personal scrutiny ofthe judge to the unacceptable alternate of hurried judicial approval ofstaff submissions.In addition to a long-range plan, the committee has other assign-ments related to that central objective. Among these are the naggingproblems of intercircuit and intracircuit conflicts of decisions in thecourts of appeals. Again, the problem is not new-it has been raisedin the past. Various solutions, including the creation of a new inter-[Vol. 21:154St. Mary's Law Journal, Vol. 21 [], No. 1, Art. 3https://commons.stmarytx.edu/thestmaryslawjournal/vol21/iss1/3FEDERAL COURTS STUDY COMMITTEEmediate court between the courts of appeals and the Supreme Court,or an intercircuit tribunal, have been proposed.Perhaps there has not been sufficiently vigorous opposition to thetacit acceptance of the notion that intercircuit conflicts are inevitable.Essentially, avoidable intercircuit conflicts occur because the courts ofappeals are considered to be semi-autonomous, regional courts. Thatformulation for an intermediate appellate structure, however, shouldbe reevaluated.When the circuit courts of appeals were first established in 1891,they were adjuncts to the trial court, then known as the "circuitcourt." The judges on those circuit courts of appeals acted in bothtrial and appellate capacities. As time went on, the dual functionproved impracticable, and in 1912 the circuit courts-the trialcourts-were abolished, leaving the appellate entities to survive alongwith the district courts.The primary mission of the courts of appeals originally was to cor-rect errors which occurred during trials, reserving the function of as-suring consistency in decisional law to supervision by the SupremeCourt. As the volume of litigation grew over the years, the SupremeCourt no longer was able to adequately meet the supervisory and law-giving function. Consequently, much of the decisional law formula-tion-particularly in the field of statutory interpretation-was as-sumed by the courts of appeals, by default as it were.The concept of regional, semi-independent forums exercising an er-ror-correction function was workable originally. But as time went on,few observers seemed to sense the anomaly of intermediate courts ofappeals adopting independent and conflicting views on national law.Courts often flatly disagreed with earlier pronouncements on statu-tory interpretation made by the courts of appeals in other circuits.The practice seemed to spread gradually, not provoking any violentobjection. And with time came acquiescence. Today, one court ofappeals feels free to disagree with any other if convinced that the ear-lier decision was not correct. Thus, we have the curious system whereregional courts, sitting in different sections of the country, apply thesame federal statute in a different manner. What results is a balkani-zation of federal law instead of uniformity.Strangely enough, many judges and academic commentators acceptthe situation, defending it as a "percolation" process which ultimatelyresults in the "correct" decision. This approach fails to question the1989]5Weis: The Federal Courts Study Committee Begins Its Work.Published by Digital Commons at St. Mary's University,ST MAR 'S LAW JOURNALvalidity of a system which, although intended to apply federal statutesuniformly, does not do so.I do not speak of inadvertent conflicts, but of deliberate and rea-soned rejections of conformity. Indeed, governmental agencies openlyseek to create conflicts between the courts of appeals in order to invitea final resolution by the Supreme Court. This practice not onlysquanders scarce judicial resources in an era when we should be con-serving them, but invites disrespect for the administration of justiceand heaps unnecessary work on an already overburdened SupremeCourt.Because of the heavy volume of cases coming to the courts of ap-peals and the large number of judges who now sit on those courts, it isimpossible to secure complete uniformity. Inadvertent conflicts willoccur. However, a structure which permits and even encourages de-liberate intercircuit conflicts requires basic rethinking.There may be a number of solutions, such as creating another sepa-rate court, but perhaps something more fundamental is necessary.For example, could not each of the regional courts of appeals in thethirteen circuits be considered a division of one, unified federal courtof appeals. Divisions could function much as the courts in the circuitsdo today, perhaps in the same geographic areas. As an alternative,the divisions could be limited in size so that no court would havemore than nine judges, thus preserving the benefits of collegiality.However, the decision in one division would have national effectand would not be confined to that division or circuit as is true today.Inadvertent conflicts and difference in emphasis in decisions whichcan have an unsettling effect could be handled through an intra-courtprocedure which might take a number of forms.Treating the courts of appeals as one unit offers other advantagesand gives greater flexibility to meet changing conditions. The benefitsof smaller, collegial groups could be retained-and perhaps ex-panded-by the use of a divisional organization. Current practicescould continue so that judges would be appointed to, and function in,a specific division, rather than being assigned at large to a massive,impersonal, national body.Details, of course, need to be hammered out, but the concept is, Ibelieve, essentially workable and holds out the promise of solvingmany of the problems that confront the appellate courts today.Another idea brought to our attention is the need for greater andmore efficient exchange of information between the courts and Con-[Vol. 21:156St. Mary's Law Journal, Vol. 21 [], No. 1, Art. 3https://commons.stmarytx.edu/thestmaryslawjournal/vol21/iss1/31989] FEDERAL COURTS STUDY COMMITTEE 21gress on questions raised by statutory interpretation. Ambiguities andgaps in legislative drafting which have come to the notice of thecourts could be called to the attention of Congress through some reg-ular process. Congress could then correct the deficiency legislativelyand end uncertainties about the statute.Reallocation of functions between the district courts and courts ofappeals in review of administrative decisions also merits furtherdiscussion.I have done no more in this limited time than survey a few of themany issues that have been brought to the committee's attention. It isunrealistic to expect that we can develop and recommend all of themin the limited time available to us. Nevertheless, we have been stimu-lated, not discouraged, by the enormity of our assignment and arepressing ahead to prepare our report.7Weis: The Federal Courts Study Committee Begins Its Work.Published by Digital Commons at St. Mary's University,

The Federal Courts Study Committee Begins Its Work.

St Mary's University School of Law Digital Repository

St. Mary's Law Journal Volume 21 Number 1 Article 3 1-1-1989 The Federal Courts Study Committee Begins Its Work. Joseph F. Weis Jr. Follow this and additional works at: https://commons.stmarytx.edu/thestmaryslawjournal  Part of the Environmental Law Commons, Health Law and Policy Commons, Immigration Law Commons, Jurisprudence Commons, Law and Society Commons, Legal Ethics and Professional Responsibility Commons, Military, War, and Peace Commons, Oil, Gas, and Mineral Law Commons, and the State and Local Government Law Commons Recommended Citation Joseph F. Weis Jr., The Federal Courts Study Committee Begins Its Work., 21 ST. MARY'S L.J. (1989). Available at: https://commons.stmarytx.edu/thestmaryslawjournal/vol21/iss1/3 This Article is brought to you for free and open access by the St. Mary's Law Journals at Digital Commons at St. Mary's University. It has been accepted for inclusion in St. Mary's Law Journal by an authorized editor of Digital Commons at St. Mary's University. For more information, please contact egoode@stmarytx.edu, sfowler@stmarytx.edu. THE FEDERAL COURTS STUDY COMMITTEEBEGINS ITS WORKHONORABLE JOSEPH F. WEIS, JR.*Bringing federal court modernization before this group brings tomind Yogi Berra's classic comment, "It's d6jA vu all over again." Butcourt reform generally moves at a snail's pace-persistence and repe-tition are seemingly inevitable in the process.The idea of a federal courts study committee is not a novel one. Inthe last 10 years, the concept has been the subject of various bills inCongress and has been discussed regularly at these conferences. Atthe close of the session in the autumn of 1988, Congress finally cre-ated the Federal Courts Study Committee. This committee differs insome respects from the earlier proposals for a commission. Thus, anydiscussion of the new committee should begin with the language ofthe enacting statute.The committee is established within the judicial conference-not asan independent body. However, in addition to trial and appellatejudges, its membership includes practitioners of the bar and membersof Congress. Recognized experts in the field, Senators Howell Heflin(D-Ala.) and Charles Grassley (R-Iowa) of the Senate Judiciary Com-mittee and Representatives Robert Kastenmeier (D-Wis.) and CarlosMoorehead (R-Cal.) of the House Judiciary Committee are activemembers of the group.As stated in the statute,' the committee's purposes are to:1. Examine problems and issues currently facing the courts of theUnited States;2. Develop a long-range plan for the future of the federal judiciary,including assessments involving-(A) Alternate methods of dispute resolution;(B) The structure and administration of the federal court system;* Circuit Judge, 3rd Circuit. Judge Weis delivered this speech at the Eleventh Seminaron the Administration of Justice sponsored by the Brookings Institute on Saturday, April1989.1. Pub. L. No. 100-702, § 102, 102 STAT. 4644 (1988)(codified at 28 U.S.C. § 331).1Weis: The Federal Courts Study Committee Begins Its Work.Published by Digital Commons at St. Mary's University, 1989ST. MAR Y'S LAW JOURNAL(C) Methods of resolving intracircuit and intercircuit conflicts in thecourts of appeals; and(D) The types of disputes resolved by federal courts.The committee is instructed to "make a complete study of thecourts of the United States and of the several states" and to submit areport by April 1, 1990 to the President, the Chief Justice, the Con-gress, the Judicial Conference of the United States, the Conference ofChief Justices, and the State Justice Institute.2 The report is to rec-ommend revisions to the laws of the United States, to develop a long-range plan for the judicial system, and to make such other recommen-dations and conclusions as the committee deems advisable.'Unlike former study groups which concentrated on the courts ofappeals or the Supreme Court, this committee is to focus its attentionon a broad plan for the federal judiciary as a whole, emphasizing thespecific areas noted above.Obviously, developing a long-range plan requires a study of whatthe courts are doing at the present time. Also necessary is some seri-ous thought on the role of the courts, and what that role should be.These roles are not necessarily the same.Because the committee must consider issues confronting the courts,our first three months were devoted to identifying the problems to beaddressed. Work began with a broad solicitation of views on the is-sues by:1. Surveying all members of the federal judiciary;2. Inviting suggestions from an extensive range of organizations in-cluding citizen groups, bar organizations, research groups, academics,civil rights interests and others;3. Contacting all federal court administrators, chief probation officers,pre-trial services chiefs, and federal public defenders.In addition, we sought and received a number of suggestions fromboth the Administrative Office of the United States Courts and theFederal Judicial Center. We also invited comments from all lawschool deans.The committee held four public hearings in various cities across thenation, receiving testimony from seventy-five quite diverse witnesses.2. Id. § 105(1).3. Id. § 105(2)-(4).[Vol. 21:152St. Mary's Law Journal, Vol. 21 [1989], No. 1, Art. 3https://commons.stmarytx.edu/thestmaryslawjournal/vol21/iss1/3FEDERAL COURTS STUDY COMMITTEEThe committee has also received a fairly steady stream of public com-ment in the media.Several organizations are preparing issue focus studies for us. Forexample, the Carnegie Foundation will present a paper on science andtechnology issues affecting the courts. The Center for Public ServiceResources in New York is preparing a presentation on alternative dis-pute resolution issues.We are engaged in dialogues with the State Justice Institute and theAmerican Judicature Society, and will be accepting offers of assist-ance from the National Institute of Justice, the National Center forState Courts, the Conference of State Chief Justices, and others. Wewill coordinate our efforts with a number of other programs such asthe Senate Judiciary Committee's Civil Litigation Project.The full committee has divided its work internally by forming threesubcommittees, assisted by a number of able reporters from academia,experts from the Federal Judicial Center and staff members from con-gressional committees. A small but dedicated and hard-working cen-tral staff has exerted untiring effort on behalf of the committee.Because, to this point, the committee has been engaged almost ex-clusively in defining the issues for study, it has not taken any positionon the policies it will recommend or even what subjects it can addressin the limited time available. The comments that follow in these briefremarks, therefore, express some of my own, very tentative views anddo not necessarily reflect those of the committee.In the early 1950s, Justice Frankfurter expressed his concern overthe detrimental effect of increasing the size of the federal judiciary,but little heed was paid to his warnings. In the 1970s, Judge Friendlyand others spoke of an inevitable loss of quality in product and confi-dence in the federal courts if growth continued unabated. But again,few listened.The Freund Commission, a Department of Justice study, and theHruska Commission proposed changes primarily to assist theSupreme Court and the courts of appeals. Opposition by both benchand bar succeeded in turning away some of the major proposals.But growth continued and, indeed, accelerated. The gloomy pre-dictions of the past have proved to prophetic: the federal courts havealready exceeded the size many thought to be desirable. The futurelooks no brighter.The Administrative Office of the Federal Courts recent projection isthat by the year 2000 (only 11 years from now), filings in the courts of1989]3Weis: The Federal Courts Study Committee Begins Its Work.Published by Digital Commons at St. Mary's University, 1989ST MAR Y'S LAW JOURNALappeals will increase 76% over the number of appeals in 1988. Letme amplify that statistic. In 1972 there were 14,534 filings in thecourts of appeals; in the year 2000, only 28 years later, it is predictedthat appeals will number 66,000-an increase of more than 400%. Inthe year 2000, filings in the district courts will soar 63% from the1988 levels, and the bankruptcy filings will swell by 152%.Assuming that a continuing increase at this rate is unacceptable, itis obvious that we have a problem. Essentially, what has happened inthe 100 years, and particularly in the last 30, is that the pendulum hasswung in the direction of increasing the burden on the federal courts.Although the first judiciary act may have given too little jurisdictionto the federal courts, they now have too much to do.Long-range planning for the federal courts must accept the premisethat litigation growth will parallel the rise in population. Legal dis-putes must be adjudicated in one of two forums-the federal or thestate courts. The division of litigation between those two systems willhave a direct bearing on the size of the federal courts and most cer-tainly an impact on their mission. In the past, increases in case loadwere met by adding additional judges. This, however, is not the opti-mal solution for our overload in the long range.There may be some room for increased efficiency in the methodscourts use to process their work, and here we can assess the potentialfor alternative dispute resolution. But frankly, I think the gains inthis area will be limited.I doubt very much that any change in appellate procedures couldallow the courts of appeals to absorb a 70% increase in filings withoutrestructuring or adding a substantial number of new judges.Automation can speed the transmission of needed information tothe judge's desk and eliminate some slippage in the processing of ap-peals. However, the critical element-reasoned deliberation by thejudge-is the factor that will be impaired by further increases in vol-ume. Attacking large numbers of cases by increasing staff cannot helpbut move decision-making away from the intense personal scrutiny ofthe judge to the unacceptable alternate of hurried judicial approval ofstaff submissions.In addition to a long-range plan, the committee has other assign-ments related to that central objective. Among these are the naggingproblems of intercircuit and intracircuit conflicts of decisions in thecourts of appeals. Again, the problem is not new-it has been raisedin the past. Various solutions, including the creation of a new inter-[Vol. 21:154St. Mary's Law Journal, Vol. 21 [1989], No. 1, Art. 3https://commons.stmarytx.edu/thestmaryslawjournal/vol21/iss1/3FEDERAL COURTS STUDY COMMITTEEmediate court between the courts of appeals and the Supreme Court,or an intercircuit tribunal, have been proposed.Perhaps there has not been sufficiently vigorous opposition to thetacit acceptance of the notion that intercircuit conflicts are inevitable.Essentially, avoidable intercircuit conflicts occur because the courts ofappeals are considered to be semi-autonomous, regional courts. Thatformulation for an intermediate appellate structure, however, shouldbe reevaluated.When the circuit courts of appeals were first established in 1891,they were adjuncts to the trial court, then known as the "circuitcourt." The judges on those circuit courts of appeals acted in bothtrial and appellate capacities. As time went on, the dual functionproved impracticable, and in 1912 the circuit courts-the trialcourts-were abolished, leaving the appellate entities to survive alongwith the district courts.The primary mission of the courts of appeals originally was to cor-rect errors which occurred during trials, reserving the function of as-suring consistency in decisional law to supervision by the SupremeCourt. As the volume of litigation grew over the years, the SupremeCourt no longer was able to adequately meet the supervisory and law-giving function. Consequently, much of the decisional law formula-tion-particularly in the field of statutory interpretation-was as-sumed by the courts of appeals, by default as it were.The concept of regional, semi-independent forums exercising an er-ror-correction function was workable originally. But as time went on,few observers seemed to sense the anomaly of intermediate courts ofappeals adopting independent and conflicting views on national law.Courts often flatly disagreed with earlier pronouncements on statu-tory interpretation made by the courts of appeals in other circuits.The practice seemed to spread gradually, not provoking any violentobjection. And with time came acquiescence. Today, one court ofappeals feels free to disagree with any other if convinced that the ear-lier decision was not correct. Thus, we have the curious system whereregional courts, sitting in different sections of the country, apply thesame federal statute in a different manner. What results is a balkani-zation of federal law instead of uniformity.Strangely enough, many judges and academic commentators acceptthe situation, defending it as a "percolation" process which ultimatelyresults in the "correct" decision. This approach fails to question the1989]5Weis: The Federal Courts Study Committee Begins Its Work.Published by Digital Commons at St. Mary's University, 1989ST MAR 'S LAW JOURNALvalidity of a system which, although intended to apply federal statutesuniformly, does not do so.I do not speak of inadvertent conflicts, but of deliberate and rea-soned rejections of conformity. Indeed, governmental agencies openlyseek to create conflicts between the courts of appeals in order to invitea final resolution by the Supreme Court. This practice not onlysquanders scarce judicial resources in an era when we should be con-serving them, but invites disrespect for the administration of justiceand heaps unnecessary work on an already overburdened SupremeCourt.Because of the heavy volume of cases coming to the courts of ap-peals and the large number of judges who now sit on those courts, it isimpossible to secure complete uniformity. Inadvertent conflicts willoccur. However, a structure which permits and even encourages de-liberate intercircuit conflicts requires basic rethinking.There may be a number of solutions, such as creating another sepa-rate court, but perhaps something more fundamental is necessary.For example, could not each of the regional courts of appeals in thethirteen circuits be considered a division of one, unified federal courtof appeals. Divisions could function much as the courts in the circuitsdo today, perhaps in the same geographic areas. As an alternative,the divisions could be limited in size so that no court would havemore than nine judges, thus preserving the benefits of collegiality.However, the decision in one division would have national effectand would not be confined to that division or circuit as is true today.Inadvertent conflicts and difference in emphasis in decisions whichcan have an unsettling effect could be handled through an intra-courtprocedure which might take a number of forms.Treating the courts of appeals as one unit offers other advantagesand gives greater flexibility to meet changing conditions. The benefitsof smaller, collegial groups could be retained-and perhaps ex-panded-by the use of a divisional organization. Current practicescould continue so that judges would be appointed to, and function in,a specific division, rather than being assigned at large to a massive,impersonal, national body.Details, of course, need to be hammered out, but the concept is, Ibelieve, essentially workable and holds out the promise of solvingmany of the problems that confront the appellate courts today.Another idea brought to our attention is the need for greater andmore efficient exchange of information between the courts and Con-[Vol. 21:156St. Mary's Law Journal, Vol. 21 [1989], No. 1, Art. 3https://commons.stmarytx.edu/thestmaryslawjournal/vol21/iss1/31989] FEDERAL COURTS STUDY COMMITTEE 21gress on questions raised by statutory interpretation. Ambiguities andgaps in legislative drafting which have come to the notice of thecourts could be called to the attention of Congress through some reg-ular process. Congress could then correct the deficiency legislativelyand end uncertainties about the statute.Reallocation of functions between the district courts and courts ofappeals in review of administrative decisions also merits furtherdiscussion.I have done no more in this limited time than survey a few of themany issues that have been brought to the committee's attention. It isunrealistic to expect that we can develop and recommend all of themin the limited time available to us. Nevertheless, we have been stimu-lated, not discouraged, by the enormity of our assignment and arepressing ahead to prepare our report.7Weis: The Federal Courts Study Committee Begins Its Work.Published by Digital Commons at St. Mary's University, 1989

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The Federal Courts Study Committee Begins Its Work.

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