Improving the Appellate Process Worldwide through Maximizing Judicial Resources

Article excerpt


As the number of cases filed each year has surged, U.S. federal appellate courts have evolved in order to fulfill their core functions of deciding appeals and setting guiding precedent. Many of the challenges created by overwhelming caseloads are also being tackled in foreign judicial systems. In this Article, Judge Wallace offers the approach of the United States Court of Appeals for the Ninth Circuit as a possible model of reform, although he also points out that each judiciary will need to tailor reform efforts to its particular circumstances.

In Part II, Judge Wallace details several of the case management techniques that have proved most useful in the Ninth Circuit. Where possible, he also identifies appellate courts in other U.S. and foreign jurisdictions that have similar mechanisms in place.

Part III considers in greater depth two particularly significant reforms: appellate level mediation and the appointment of an Appellate Commissioner. These reforms more fundamentally alter the conventional approach to appellate court adjudication.

Part IV briefly considers arguments that these reforms erode the quality of judicial decision-making. Judge Wallace concludes that increasing efficiency with streamlined case management and mediation mechanisms does not necessarily compromise core judicial principles.


      A. Initial Review
      B. Special Considerations for Pro Se Cases
      C. Issue Identification and Case Grouping
      D. Motions and Screening Panels
      E. Deciding the Appeal on the Briefs
      F. Unpublished Dispositions
      A. Mediation
      B. Appellate Commissioner


There has been no shortage of studies profiling the stark surge in the United States federal appellate courts' caseloads. (1) The numbers speak for themselves. Filings leapt from 3,900 a year in 1960 to 11,600 in 1970, then almost doubled over the next decade, only to double again by 1992. (2) Since 1992, filings have jumped an additional seventy-five percent, exceeding 60,000 in 2003. (3) The number of appeals pending at the end of each fiscal year rose from 2,220 in 1960 to 44,600 in 2003, (4) more than a twenty-fold increase.

I have witnessed this growth firsthand, and I can vouch that the statistics and resultant workload are indeed startling. During my thirty-two-year tenure on the Court of Appeals for the Ninth Circuit, I have watched the circuit's appeals more than quintuple from 2,258 (5) to 12,872 filings a year. (6) I was appointed in 1972 to fill one of thirteen authorized active judgeships; at that time, five judges were serving the circuit on senior status. (7) I am now one of twenty-two senior judges. The active ranks have grown to twenty-eight judgeships, and there are urgent pleas to add more.

Many commentators have treated the burgeoning caseload as a cause for alarm. (8) The quality of appellate decision-making, they say, has been diluted by more cases in competition for finite judicial resources. Enlisting an ever-expanding army of judges to cope with the volume has decreased collegiality among those on the bench. Article III judges are forced to delegate more responsibility to their staffs; law clerks and staff attorneys actually make the decisions, some fear, while the judges relegate themselves to supervisory roles. A shrinking proportion of litigants is afforded the opportunity to present cases orally before the tribunal; fewer parties still are fortunate enough to have their disputes resolved in a published, fully reasoned decision. Despite all of the procedural shortcuts, expediency has given way to protracted delay. (9)

Although the rise in caseload has been striking, I see no reason for doomsaying. …