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9 Tex. Tech L. Rev. 799 (1977-1978)
The Imminent Destruction of the Fifth Circuit; or, How Not to Deal with a Blossoming Docket

handle is hein.journals/text9 and id is 821 raw text is: THE IMMINENT DESTRUCTION OF THE FIFTH CIRCUIT; OR, HOW NOT TO DEAL WITH A BLOSSOMING DOCKET Thomas G. Gee* Small reforms are the enemies of large ones.-French adage. This is an article about my court, the Fifth Circuit Court of Appeals, about some of the difficulties in which it presently finds itself, and about solutions for them presently proposed. It also sug- gests a general course of remedial action which, by contrast to the circuit splitting presently urged upon the Congress, offers prospects of real and not ephemeral relief. THE PROBLEM No one likely to commence this piece at all will be startled to learn that the federal courts are in difficulties stemming from their burgeoning dockets, difficulties aggravated in many instances by the imposition of the Speedy Trial Act's fiats. Nor is the problem new: scholars and practitioners concerned with these courts have long recognized it, and at least one has taken the Fifth Circuit as its epitome.' I propose to do likewise.' But lately the difficulty has seemed to accelerate. To quote only a few figures, in 1951 appellate filings in the Fifth Circuit were a few over 400. In 1964, when Profes- sor Wright's article referred to at footnote 1 was published, they stood at over 1,000. And by fiscal 1976-77 they had risen to nearly 3,600. It would be a misapprehension, however, to conclude from this increase of 800% during the roughly twenty-five year period in ques- tion that the workload of the court has increased in direct propor- tion to the increase in filings. Clearly it has not. For though the court has kept roughly abreast of these new filings, developing only a small to moderate backlog from time to time,3 it has done so in * Thomas G. Gee, Associate Judge, Fifth Circuit Court of Appeals; B.S., United States Military Academy at West Point, 1946; L.L.B., University of Texas, 1953. 1. E.g., Wright, The Overloaded Fifth Circuit: A Crisis in Judicial Administration, 42 TEXAS L. REv. 949, 976 (1964). 2. As an indication of the degree to which the docket problems of the Fifth Circuit outstrip those of others, participations in cases per active judge in the Fifth for fiscal 1976, the most recent one for which they are available, averaged 365. In the next most active circuit, the First, they were 285, grading down through the Ninth (216), the Second (190), to the D. C. Circuit (130). 3. The backlog is presently about 500 cases.

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