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73 Wash. L. Rev. 957 (1998)
Malthus and the Court of Appeals: Another Former Clerk Looks at the Proposed Ninth Circuit Split

handle is hein.journals/washlr73 and id is 967 raw text is: Copyright 0 1993 by Washington Law Review Association MALTHUS AND THE COURT OF APPEALS: ANOTHER FORMER CLERK LOOKS AT THE PROPOSED NINTH CIRCUIT SPLIT Aaron H. Caplan Abstract: This Article argues that current proposals to split the Ninth Circuit are unnecessary and would be detrimental to judges, law clerks, lawyers, and litigants. Larger circuits offer various benefits, many of them arising from the diversity of cases and judicial personalities on the bench. Splitting the Ninth Circuit would not bring the benefits proponents predict. Like Jennifer Spreng, I served as a law clerk to a Ninth Circuit judge. But unlike her, I believe that for the foreseeable future, splitting the Ninth Circuit is unnecessary and harmful. The arguments currently being raised in support of splitting the Ninth Circuit resemble Thomas Malthus's famous warning that the Earth's human population would rapidly exceed the planet's carrying capacity, resulting in famine, disease, war, and social chaos.' Malthus may have been correct that there could come a point at which population will exceed resources, but he was famously wrong about how soon that dreaded moment would arrive. The same can be said for worries that an intermediate appellate court of twenty-eight active judges is too big to serve the public interest.2 My experience as a law clerk to a Ninth Circuit judge3 leads me to believe that for the foreseeable future, splitting the Ninth Circuit is unnecessary and harmful. Jennifer Spreng's experience as a Ninth Circuit I. Thomas Malthus, An Essay on the Principle of Population (1798). 2. Former Chief Judge James R. Browning observed the same syndrome, although it struck him and others as a parallel to de Tocqueville rather than Malthus: As the Ninth Circuit grew from 3 judges to 7, from 7 to 9, 9 to 13, 13 to 23, and 23 to 28, there were those who were sure the court had reached the maximum practicable size before the new judges arrived. In each case, that prediction turned out to be wrong. As Professor Wright said as to similar remarks in the Second Circuit in 1950: When we made those comments, we were illustrating in striking fashion de Tocqueville's admonition against confusing the familiar with the necessary. Testimony of Former Chief Judge James R. Browning to the Commission on Structural Alternatives for the Federal Courts of Appeals (visited July 26, 1998) <http:llapp.comm.uscourts.gov/ hearings/sanfran/0529BRO\V.htm>. 3. Law clerk to the Honorable Betty Fletcher, Aug. 1991-Aug. 1992.

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