For decades appellate courts across the country have struggled to stay on top of ever-expanding caseloads. As Thomas Marvell observed, "[t]he appellate caseload explosion and the resulting pressures on the courts are hard to exaggerate. Appeals have been doubling about every decade since World War II, placing extreme demands on judges to increase output." (1) By way of comparison, the rate of growth in appellate dockets between 1973 and 1983 "far outstripped increases in the nation's population (ten times faster), the number of trial judgeships (four times faster), and the number of appellate judgeships (three times faster)." (2) States have experienced stunning growth during this decade: the total number of state appeals increased by 112%, with some individual state dockets leaping by 305% (Alaska). (3)
Many approaches to managing burgeoning dockets have been tried, including creating intermediate appellate courts, requiring unpublished opinions, limiting access via petitions of certiorari, and encouraging parties to waive oral argument. (4) In the first nationwide study of appellate court changes, Marvell chronicled the experience of forty-five states from 1968 to 1984, and concluded that each state had tackled its individual caseload crisis in its own fashion, according to the local culture and with no one approach uniformly accepted. (5)
Responses to growing state appellate dockets not only derive from local culture, but also from a reviewing court's role in the United States system of justice. Appellate review is recognized as having two distinct functions: first, fixing relatively clear-cut errors made by courts of original jurisdiction, and second, making new law and systematizing it. (6) In that first capacity, "appellate courts serve as the instrument of accountability for those who make the basic decisions in trial courts and administrative agencies." (7) In the second role, reviewing courts "announce, clarify, and harmonize the rules of decision employed by the legal system in which they serve." (8) Attempts at expediting appellate review with an eye toward addressing heavy dockets must account for this "traditional duality" (9) because efficiency gained in processing appeals may pit one of these functions against the other. For example, decreasing appellate backlog via unpublished or summary opinions could compromise the second appellate function by not announcing, clarifying, and harmonizing legal rules publicly in writing.
Even though creating intermediate appellate courts is the most expensive option for expediting appeals, most states have gone this way in the past forty years because of the efficiency in processing appeals this measure offers. (10) In 1957, only thirteen states operated mid-level courts of appeals. (11) By 1987, twenty-five more states had created an intermediate appellate court. (12) As of January 2002, only eleven states and the District of Columbia lack an intermediate court of appeals, as listed below in Table 1. Notably, these states tend to have relatively small populations and appellate caseloads.
Other states have responded to the delays caused by caseload growth by having the state's high court sit in panels. According to Marvell's study, as of 1984, thirteen state supreme courts have sat in panels, and another eleven did so until an intermediate court was created or expanded. (13) Clearly panels serve as an intermediate step to the creation of a formal intermediate appellate court for some states. (14)
II. THE ROCKET DOCKET
Small jurisdictions like Vermont have sought creative approaches to their growing caseloads short of creating new appellate courts. After studying other states' caseload management innovations, (15) Vermont developed a summary disposition procedure (16) fondly nicknamed the "Rocket Docket." (17) This expedited appeals process determines which kind of reviewing function a case presents and then uses two distinct tracks for reviewing trial court decisions. Cases that call for the supreme court's review for correction of error are set for summary …