The Decision Making Process in Federal Courts of Appeals
![handle is hein.journals/ohslj51 and id is 1397 raw text is: Judges on Judging
The Decision Making Process in Federal Courts of
Appeals
GILBERT S. MERRITT*
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, con-
gressmen, judges and lawyers--calls the present situation in the Courts of Ap-
peals 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 con-
sideration of all issues is the benchmark of judicial performance.2 Lamenting
the present and predicting a further decline in judicial performance, the Com-
mittee 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 Sup-
porters of the consensus often cite as primary authority the second chapter, en-
titled 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.
1. FEDERAL COURTS STUDY COMMITTEE, REPORT OF THE FEDERAL COURTS STUDY COMMITTEE 109 (1990).
2. For full descriptions of this model, see K. LLEWELLYN, THE COMMON LAW TRADmON: DECIDING AF-
PEALS 430-45 (1960); B. CARDOZO, THE GROWTH OF THE LAW (1924); B. CARDOzO, THE NATURE OF THE JUDI-
CIAL PROCESS (1921); Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARv. L. REv. 1 (1959).
3. FEDERAL COURTS STUDY COMMITTEE, supra note 2, at 109.
4. Robe], Caseload and Judging:. Judicial Adaptations to Caseload, 1990 B.Y.U. L. REv. 3. See generally
Fiss, The Bureaucratization of the Judiciary, 92 YALE LJ. 1442 (1983); Merritt, Owen Fiss on Paradise Lost:
The Judicial Bureaucracy in the Administrative State, 92 YALE LJ. 1469, 1471 n.6 (1983).
5. R. POSNER, FEDERAL COURTS: CRISIS AND REFORM 94-129 (1985).](ViewImageLocal?handle=hein.journals/ohslj51&div=57&collection=&method=preview&ext=.png&size=3)
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The Decision Making Process in Federal Courts of Appeals
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