1

COMMISSION ON STRUCTURAL ALTERNATIVES

FOR THE FEDERAL COURTS OF APPEALS

+ + + + +

CHICAGO, ILLINOIS

+ + + + +

PUBLIC HEARING

+ + + + +

FRIDAY

APRIL 3, 1998

+ + + + +

This transcript was produced from tapes

provided by the Administrative Office of United States

Courts.
2

I-N-D-E-X

testimony page no.

Judge J. Clifford Wallace

U.S. Court of Appeals, 9th Circuit 4 

Judge Harlington Wood, Jr.

U.S. Court of Appeals, 7th Circuit 41 

Thomas R. Meites, Attorney

Chicago Council of Lawyers 55 

Peter Jon Simpson

Christian Legal Education & Research

Chicago 81 

William Richman, Professor of Law

University of Toledo 93 

Collins Fitzpatrick

Circuit Executive, 7th Judicial Circuit 124 
3

1 P-R-O-C-E-E-D-I-N-G-S

2 JUDGE MERRITT: ...and we're holding six

3 public hearings around the country and this is the

4 third one of those public hearings.

5 The job of the Commission is to look at

6 the structure of the Federal Courts of Appeal and to

7 make recommendations to the Congress (indiscernible)

8 a statute that Congress adopted a few months ago. The

9 statute provides that we will make a recommendation

10 specifically with regard to the 9th Circuit and

11 (indiscernible) recommendations (indiscernible).

12 I don't know whether Judge Rymer or

13 (indiscernible) have any comments that they would like

14 to make preliminarily.

15 COMMISSIONER: I might just state that

16 these hearings are (indiscernible) be made available

17 to the other commissions who have not passed statutes

18 (indiscernible) two members of the commission.

19 (indiscernible)

20 JUDGE MERRITT: Our first witness is

21 distinguished former chief judge of the 9th Circuit

22 and a long time friend of mine, Judge Wallace.
4

1 (indiscernible)

2 JUDGE WALLACE: Well, I hope that you

3 won't let that interfere with your asking questions,

4 and I am sure you won't. I'm very happy to be here

5 and I appreciate the opportunity because I will not be

6 in the country when the Commission (indiscernible) my

7 own circuit.

8 What I want to talk about briefly is the

9 high points of the written testimony that I've already

10 provided. It seems to me the Commission is in the

11 place of having a great opportunity to change the

12 process we followed in the past of when circuits

13 should be divided. The fallacy is that we divide when

14 a court is quote "too big" close quote. When is a

15 court too big? That's like asking the question how

16 long is a string? 

17 The answer is too big when our own

18 individual experience tells us it's too big. And what

19 does that tell us? Anything bigger than what we're

20 used to is too big. This ad hoc approach it seems to

21 me is problematic because it isn't based upon

22 principles. It's based upon subjective thoughts. 
5

1 Let me if I could explain why I think

2 we're in the problem we're in today with a simple

3 diagram. This triangle is what we refer to as the

4 judicial administration triangle, at least when I

5 teach judicial administration. At the lowest end of

6 the triangle are the District Courts. At the upper

7 end is the Supreme Court and in the middle is the

8 Court of Appeals. When you need additional District

9 Court judges because there are more cases, it's easy

10 to get them. All you so is have a formula, which we

11 have, and when that (indiscernible) meet the formula,

12 you increase the District Court. 

13 So the bottom of the triangle has a

14 tendency to expand, increasing the size of the

15 triangle. That does not create a problem at the

16 District Court level because they're dealing with a

17 certain number of filings. So each District Court

18 judge is not impacted. The Supreme Court is not

19 impacted because the Supreme Court has the hand on the

20 spigot and will only take a certain number of cases.

21 The problem is with mandatory jurisdiction

22 to the intermediate court. And as the triangle
6

1 continues to expand to more District Courts, the

2 problem always occurs -- and this is true not only in

3 the United States but in foreign countries -- the

4 problem always occurs in the intermediate court where

5 you have mandatory jurisdiction. And that's what

6 we're suffering from now. It's finally caught up to

7 us. In fact, it did years ago, but it's finally

8 caught up to us that that problem in the intermediate

9 court is a serious problem that our country has to

10 face now.

11 There has to be, it seems to me, an

12 alternative to the ad hoc approach. If the problem is

13 as serious as I think it is, it's time to relook at

14 how we approach the intermediate court problem. Now,

15 what is the alternative to the ad hoc approach? It

16 seems to me it's to find basic principles.

17 JUDGE MERRITT: What would those

18 principles be?

19 JUDGE WALLACE: All right. The first, of

20 course, would be to recognize that no system is going

21 to be perfect. There will always be objections to it.

22 Professions, you can't expect profession in the
7

1 principle nor can you rely upon what judges would like

2 to do. That's where I find the fallacy in the Federal

3 Judicial Center 1993 report which did surveys of

4 judges. Judges like (indiscernible) They like to

5 stay the way they are. They don't want to change how

6 they've done things. We're the most conservative

7 people in the world. Lawyers are second most

8 conservative. 

9 So we can't just go on what we'd like to

10 do, what our creature comforts are. Then it seems to

11 me the principle is to recognize a long-term need for

12 the court system, to find out what the long-term need

13 is, not to focus so much on the present problem,

14 division of (indiscernible) but to decide what the

15 long-term principles are, then apply that principle to

16 the (indiscernible)

17 JUDGE MERRITT: (indiscernible)

18 JUDGE WALLACE: It is. Then that starts

19 off with the first issue is what do we want the courts

20 to look like 20, 30, 40, 50 years? That comes back to

21 determining what the mission of the federal courts is.

22 Seems to me that you have to first establish what the
8

1 long-term needs are and that invariably gets you in a

2 position that you have to decide what's the mission of

3 the federal court going to be? 

4 Obviously, the federal court is a very

5 unique court. We have less than 10 percent of the

6 filings --

7 JUDGE MERRITT: Let me ask you this. The

8 case loads of the federal (indiscernible) are

9 relatively (indiscernible) in that you can take a

10 growth curve and you can come up 30 years, 40 years

11 from now, if you use the same pattern of the last 40

12 years with a case load of about 15 times the numbers

13 that we have now (indiscernible)

14 JUDGE WALLACE: That's right.

15 JUDGE MERRITT: But it's been slowing

16 down. So the problem, it seems to me, with a global

17 solution or to find the answer to a searching question

18 of what are the principles is that we don't really

19 have a good fix on what the case load is going to be

20 or the kinds of cases that may have to be decided 30

21 years from now. For example, biology is exploding and

22 we've not had very many cases (indiscernible) genetic
9

1 areas. We may have 30 years from now a lot of cases.

2 Our case loads could be high for reasons that are not

3 immediately apparent. 

4 So it seems to me that to say that we've

5 got to set up minimum principles that apply is a

6 problem because we don't know what the future holds.

7 JUDGE WALLACE: That's true. The answer

8 is in three areas, it seems to me. #1 is that you

9 can't predict accurately. We can make estimates and

10 those estimates are ones that probably will not be

11 accurate. The Federal Court Study Committee made some

12 predictions which I don't think are going to occur and

13 haven't so far. 

14 But on the other hand, if you do nothing,

15 if you do nothing, then you're just leading blindly

16 down the process and when you pick up one end of the

17 stick by dividing the circuit or not dividing the

18 circuit, automatically you're picking up the other end

19 of the stick. You're making long-term decisions but

20 what you're saying is I will not consider the future

21 because we don't know enough about it. 

22 There is an alternative and that
10

1 alternative is to become more effective in our

2 development of the future and then have the

3 flexibility to make the changes. Now what do I mean

4 by that? I am an advocate of large circuits. I think

5 if we had five or six circuits in the United States

6 we'd be about right. Why?

7 Well, there's a lot of reasons in economy

8 but one of them as far as the future is concerned is

9 that you have the flexibility to meet changes. Let me

10 give you an example. In the 9th Circuit we weight

11 cases. The weighting system is one, three, five,

12 seven, 10. An average case is a five. Now, there are

13 some other circuits that have begun doing this, but

14 we've been doing it for a long time. Shirley

15 Hostetler (phonetic sp.) came up with this idea. So

16 we now have trained staff that are reasonably

17 competent. It's not perfect. They make mistakes.

18 But it gives us enough to work with and we use it for

19 a variety of things like setting cases. 

20 What I did when I became Chief Judge is

21 began to test us on where this is going. We were

22 having an increase at that time of seven percent per
11

1 year. It's now about three to five percent. So it's

2 gone down. We're having a seven percent increase.

3 What I found out was the fives, sevens and 10s

4 remained relatively stable. This was about 25 percent

5 of our work load. Where was the increase? The ones

6 and threes. The ones were the single issue easy

7 cases, the threes were half way between that and an

8 average case. 

9 If you have a large enough circuit to be

10 able to run these kinds of statistics, you also have

11 a large enough staff, resources, to modify your

12 process to take care of change. So with a large staff

13 with the ability to do it, we could then concentrate

14 upon this process. 

15 I found, for example, that over one-third

16 of our cases are pro se which means that a system that

17 was set up for the adversary system was missing the

18 boat in over one-third of the cases. We were set up

19 for a system that didn't fit. With enough resources

20 then, I was able to set up a pro se department which

21 took each one of these cases and we're being able to

22 massage that one-third of the cases to handle them
12

1 differently than the rest of the cases. 

2 PROFESSOR MEADOR: I ask a question?

3 JUDGE WALLACE: Sure.

4 PROFESSOR MEADOR: Because you said you

5 used (indiscernible) Do you mean that a large Court

6 of Appeals or a large Circuit? Seems to me there's a

7 difference between the Circuit and the Court.

8 JUDGE WALLACE: I'm glad you brought that

9 point up, Dan. I had not made that distinction and I

10 think it's a very important distinction that I'm

11 talking now about the Court of Appeals rather than the

12 Circuit as a whole. But invariably the process is

13 similar. It's just not as extreme as it with all of

14 the District Courts which have now, I understand,

15 somewhere around 40 percent pro ses are funneled into

16 the Court of Appeals.

17 COMMISSIONER: Let me follow up on his

18 question. If you change the structure of the Courts

19 of Appeals, the law and administration and such, you

20 have to change the circuits as well, or the

21 administration of the circuits would have to be

22 changed. You couldn't just have a few large Courts of
13

1 Appeals without changing the administrative structure

2 of counsel.

3 JUDGE WALLACE: You mean if you followed

4 through on my suggestion of having five or six

5 circuits? Yes, there would be changes. There would

6 be modifications. There would be different

7 modifications than providing the Circuit. There's

8 always change, whether you divide or increase. It's

9 just a question of what will work best in 20 or 30

10 years and bite the bullet now. At least if it's

11 right, it means don't do any more dividing and let

12 Circuits growth. Excuse me, Dan.

13 PROFESSOR MEADOR: Excuse me. I think

14 you're willing to go along with the basic geographical

15 structure of (indiscernible) We had that

16 (indiscernible), as you know, and you're not

17 advocating taking away from the territorial structure.

18 You're just saying (indiscernible)

19 JUDGE WALLACE: That's correct.

20 PROFESSOR MEADOR: Somebody has to design

21 and say (indiscernible) If a body is looking at

22 circuit boundaries, given the territorial concept we
14

1 have, is it possible to identify some sort of factors,

2 objective factors, that one would take into account in

3 fixing Circuit values. What are the elements you look

4 at to decide whether the values are here or there or

5 large or small or what?

6 JUDGE WALLACE: I think that would

7 necessarily be an arbitrary decision. If you're going

8 to get down to five to six Circuits, what you're

9 trying to do is develop a certain amount of equality

10 and there wouldn't be equality of geography or maybe

11 not even necessarily equality of population. I

12 suppose it would be equality of federal impact. That

13 is, to try and divide the federal impact into five or

14 six units. It would not be exact obviously and there

15 would be some gives and takes. 

16 But I think the principle as I would see

17 it would be to try and divide up the federal work load

18 or the federal impact and I would think it would come

19 out unequal. But it would be more equal, say, that

20 the division now between the 1st and the 9th. It

21 would be somewhat more difficult. And it may not be

22 enough gaining five to six Circuits. It might be
15

1 four, it might be seven, but the idea would be to have

2 fewer larger circuits. 

3 If that principle is right, then it should

4 be done. If it can't be done, then at least the

5 principle indicates that we ought to continue to let

6 Circuits continue to grow. My theory is that if the

7 9th Circuit has a reasonable method of disposing of

8 cases that is not perfect, we can't go back to the

9 days of (indiscernible) when everything was nice and

10 warm and fuzzy. But if it carries out a reasonable

11 method, then it seems to me that there's at least a

12 viable alternative that large Circuits can work. 

13 And I suggest to you that the 9th Circuit

14 has worked and, if that's true, then at least the

15 alternative of five or six circuits should be on the

16 stove. Something that should be dealt with with the

17 Commission and that looking long-term --

18 COMMISSIONER: Are you saying that more

19 Circuits should like my Circuits rather than splitting

20 my Circuit to make the 9th Circuit look more like the

21 other Circuits?

22 JUDGE WALLACE: Yes. The 9th Circuit
16

1 becomes the model and, if that's right, then look at

2 the alternatives that it overcomes. If we continue

3 with ad hoc approach alternatively by picking up one

4 end of that stick, the other end is balkanization

5 (phonetic sp.) of a national law. You continue to

6 divide for 20, 30 years, you end up with balkanization

7 of national law or a fourth tier, which I rejected and

8 many others have.

9 COMMISSIONER: -- provided once over the

10 last number of years and that's the 5th and that was

11 at the unanimous suggestion of the 5th Circuit judge.

12 JUDGE WALLACE: With one exception.

13 (indiscernible)

14 COMMISSIONER: Yes. (indiscernible)

15 COMMISSIONER: Let me get your reaction to

16 this point. Instead of there being some kind of

17 crisis in the Courts of Appeals, it seems to me that

18 in the last 40 years since 1960 Courts of Appeals have

19 accommodated themselves through minor evolutionary

20 change to a (indiscernible) large case load. Taking

21 my circuit, the 6th Circuit, in 1962 (indiscernible)

22 were 365 cases and now there 4,500 cases. There were
17

1 five judges in 1962 and they're now authorized 16 and

2 we never have more than 15. (indiscernible) And we

3 maintain (indiscernible) all cases (indiscernible) and

4 we don't have any summary orders that were

5 (indiscernible) We do decide some cases from the

6 bench but there's no talk that 6th Circuit is in

7 crisis and, in looking at case loads around the

8 country, (indiscernible) we've foreseen that they'll

9 accommodate the increase in (indiscernible) and that's

10 been done through mainly (indiscernible) and other

11 mechanisms. Sometimes short cuts that judges would

12 prefer not to have. But I don't know that

13 (indiscernible) It's a great deal less than it was 40

14 years ago. 

15 Now, what's your thought about this.

16 JUDGE WALLACE: When I came on the Court

17 of Appeals in 1972, we weren't working as hard as we

18 are now. I think I had more time for cases then.

19 This is subjective. 

20 COMMISSIONER: (indiscernible) quality has

21 --

22 JUDGE WALLACE: I don't. I don't think my
18

1 quality of my opinions has gone down. It's a hard

2 working job. I don't see a problem with that. I was

3 a hard working lawyer and I expect to be a hard

4 working judge. I think what we have done, as you say,

5 over some resistance of judges who don't like to

6 change, what we have done is found new methods that

7 can be used which can accommodate work load. For

8 example, the idea of screening and more effective

9 screening. The biggest group of your cases coming

10 through are simple cases.

11 COMMISSIONER: (indiscernible) cases.

12 JUDGE WALLACE: Yes. Yes.

13 COMMISSIONER: That's been the largest

14 increase in (indiscernible)

15 JUDGE WALLACE: Thirty seven percent of

16 our increase are in prisoner cases and we have this

17 large pro se. That's the increasing group. What we

18 have to do is figure out new ways of handling that.

19 We didn't have settlements at the Appellate level. We

20 thought they wouldn't work. And now the 6th Circuit

21 and the 9th Circuit, the 10th Circuit, the 2nd

22 Circuit, all have effective programs. In the 9th
19

1 Circuit we have six well-trained mediators. They

2 settle about 100 cases each a year. We weren't doing

3 that when I came on. We didn't have any need for that

4 kind of thing. 

5 Now, 600 cases a year, solid cases, are

6 going on. Not the spinning (phonetic sp.) type cases.

7 Solid type of cases. We developed this oral screening

8 which at first light most judges said, You can't do

9 that. And yet every judge who has done it has said,

10 This is a better way than serial screening. The

11 importance of our oral screening program is that we

12 can expand it. What serial screening depends upon is

13 ended by the number of judges you have. Our oral

14 screening program is you just take judges off the oral

15 (indiscernible) and put more in oral screening. You

16 have the flexibility to move. I think we've found out

17 over the years there's different ways of accomplishing

18 our job.

19 COMMISSIONER: Let me ask a few other

20 questions. (indiscernible) I have not had any

21 personal knowledge about (indiscernible) talking to

22 you over the years.
20

1 JUDGE WALLACE: You beat me at tennis, I

2 might add.

3 COMMISSIONER: And so I asked a number of

4 the visiting judges from other Circuits, friends of

5 mine and others who have been out there to give me

6 their reaction to the splitting problem. The but/for

7 clause in this connection is a 9th Circuit situation

8 and so we've got to address that one way or another.

9 There is a general perception among judges

10 who come out to the 9th Circuit and sit as well

11 apparently as Justice Kennedy and (indiscernible) that

12 the 9th Circuit ought to be split and when you ask the

13 question why, the kind of responses that you get are,

14 Well, it's just too big and then, Well, what do you

15 need? What are the consequences of being just too

16 big? And they say, Well, there's no collegiality and

17 the benefits that arise from collegiality

18 (indiscernible) are undermined and secondly, there is

19 a perceived set of conflicts, intra-circuit conflicts,

20 that why was there (indiscernible) 

21 You have Justice Kennedy who makes the

22 statement publicly that the Circuit ought to be split
21

1 and maybe he has some other reasons. I don't really

2 know. And then these judges who come out and sit for

3 the 9th Circuit tend to say (indiscernible) Why do you

4 think that is? I mean this is a perception that

5 judges have about it. Why do you think that is?

6 JUDGE WALLACE: Well, judges when they

7 come to make a subjective determination are based upon

8 their own past experience and they come out for one

9 term and they just say, Of course, 28 is too large.

10 But if they came and lived in the Circuit, if we had

11 a way of bringing them out there for six months or a

12 year so that they could watch the process work, it's

13 quote, "too big." 

14 Now, there's a lot of problems, of course,

15 with keeping any circuit their law consistent. The

16 strange part about it is our law is as consistent as

17 any other circuit. We're not too big. The only

18 empirical data shows that we're as consistent as any

19 other. Now, what is that? We've learned over the

20 time period since I've been a judge that all cases

21 don't have to be published. When I became a judge in

22 '72, we published every case. Then we realized that
22

1 we have two responsibilities. One is error correction

2 and one is setting precedent. And precedent, you only

3 need to publish when there's precedent.

4 Now, as we've become more effective at

5 looking at whether we really need a precedential pace,

6 we publish fewer and fewer cases. And now in the 9th

7 Circuit it's less than 17 percent. So when you talk--

8 COMMISSIONER: By published, you mean in

9 the west (phonetic sp.) system? What about in the

10 electronic retrieval?

11 JUDGE WALLACE: I mean published, when I

12 say a precedential case, in the 9th Circuit you can

13 not cite to us unpublished decisions.

14 COMMISSIONER: But they are on the --

15 JUDGE WALLACE: (indiscernible) They

16 have. But they can't be cited to us. We don't pay

17 attention to them because we know how we do those and

18 what we have in mind.

19 COMMISSIONER: Could you address the

20 question of collegiality. What do you think it means

21 and do you have it and bow?

22 JUDGE WALLACE: Well, collegiality has two
23

1 forms. #1, it's (indiscernible) and to me that is an

2 issue of attitude rather than numbers. There are

3 smaller courts that are far less collegial in that

4 respect than the 9th Circuit. And we go to great

5 lengths to make ourselves collegial in that way. We

6 are able to disagree without being totally

7 disagreeable and we remain friends. Some of the

8 judges who are "I disagree with most" have a tendency

9 to be most interested in me and my personal welfare.

10 The other part of collegiality is the

11 ability to come together with the law. That is, to

12 understand the law and the direction of the Circuit.

13 And that's a process that's more difficult and it

14 requires people to work together on the process.

15 Because there's a larger number, you have to do things

16 differently. Not wrong, but do them differently.

17 For example, we have to pay attention to

18 about one out of five cases. That's the precedent and

19 we must keep our eye on it. But it's wrong to think

20 that we're alone. I disagree with people who have

21 said that there is this sort of monitoring duty that

22 evolves solely upon the judges. Through the process
24

1 of using modern computerized techniques, we can

2 decrease that problem. The problem is is not knowing

3 what's going on in the rest of the court. Through

4 issue identification and case clustering, we stop that

5 problem at the beginning. Then as we decide cases, we

6 have staff to look at the cases and to watch us. We

7 look at the cases and, most importantly, we have

8 lawyers who know how to file suggestions for rehearing

9 (indiscernible)

10 If you look at the total process, if you

11 look at the total process and not just judges alone

12 working on it, then it's doable. Is it as collegial

13 in that respect as it was in the days of

14 (indiscernible) Obviously not. And if you have a

15 three judge circuit, you're going to be completely

16 collegial. The question is is it collegial enough to

17 provide a fair way of solving disputes? I suggest it

18 is and, therefore, large circuits can work.

19 COMMISSIONER: Well, most people -- of

20 course, collegiality is a matter of friendly feelings

21 and open expression but that doesn't necessarily mean

22 anything about the judicial process. It's thought to
25

1 mean that views get accommodated. Where there's

2 disagreement or different views, they tend to get

3 accommodated more easily.

4 JUDGE WALLACE: And to follow precedent.

5 COMMISSIONER: With less of a chip on the

6 shoulder, I'm going to maintain my position in the

7 face of some different views from others.

8 JUDGE WALLACE: Yes.

9 COMMISSIONER: I don't know in the 9th

10 Circuit whether there's a difference there or not but

11 there seems to be a perceived difference. Whether

12 that's truth, I don't know.

13 JUDGE WALLACE: I think that's right. The

14 reason it's perceived that way is no one can see if

15 you're sitting on a court of five or six judges how

16 you could possibly be congenial with 28. That's

17 because it's quote "too big" close quote. The same is

18 true (indiscernible) decision. People say how can you

19 have 11 judges decide for 28? Well, they aren't.

20 It's a process. It's a process that accommodates the

21 saving of assets that's sufficient for finality. If

22 you don't believe every judge has to have their hand
26

1 in the --

2 COMMISSIONER: That system didn't work for

3 years. That didn't have anything to do with the

4 particular structure. It changed (indiscernible)

5 objective of the 9th Circuit changed (indiscernible)

6 JUDGE WALLACE: Any time it's by local

7 rule.

8 COMMISSIONER: Let me ask you this. I

9 know this is a different question but it runs contrary

10 to what you were saying. I assume that

11 (indiscernible) is going to have to consider this

12 problem that if Congress should decide that it will

13 reject the views of Judge Wallace and split the 9th

14 Circuit, how should it be split?

15 JUDGE WALLACE: Well, I've thought about

16 that. I mean I've got to be honest about it. I'm

17 somewhat concerned about setting up a northwest

18 circuit. That's an easy thing to do because the line

19 is easy to draw and the political votes are there if

20 you want to count them (indiscernible) and it obviates

21 the problem of inviting California in where the

22 (indiscernible) votes aren't there in the House. 
27

1 But if you go back to principles and not

2 political decisions, what a Circuit should be is large

3 enough so it's not parochial, so that it has a federal

4 feel about it. I think that's too small a circuit.

5 I think the first circuit is too small. I just don't

6 think those are the kinds of circuits that give us

7 enough breadth to get at nationalism --

8 COMMISSIONER: Would you split California?

9 if it pushed (indiscernible) and that's what they're

10 going to do, Congress will (indiscernible) whatever

11 the various reasons are. Would you keep California

12 intact? (indiscernible) recommended that it be split.

13 JUDGE WALLACE: I know and one of these

14 days you'll find the story behind that recommendation

15 is truly rewarding but I wasn't sitting there when it

16 happened. You ought to ask that question of one of my

17 colleagues on the court who was in Congress at the

18 time on the (indiscernible) Commission and I think

19 you'll get an interesting answer.

20 I don't think dividing California is in

21 the long-term interest and best interest of the

22 federal judiciary for California. There's too much
28

1 interaction between cities and the state to have to

2 worry about two circuits. The state is not two

3 states. It's one state and it functions commercially

4 as one state. And it would seem to me that there's no

5 logical reason for dividing California. If the

6 Commission wants to recommend and if Congress wants to

7 adopt some division, it should be one that's agreeable

8 with the future of the community. I say dividing

9 California isn't. I say a northwest Circuit isn't.

10 I suppose the least worst solution would

11 be the so-called string bean Circuit. Arizona and

12 Nevada aren't going to be too happy about that. But

13 at least it would get away from the provincialism in

14 too small of a Circuit, which I think the northwest

15 Circuit is. Arizona is growing. It now has the sixth

16 largest city in the United States. It would provide

17 more of a balance than it would --

18 COMMISSIONER: Just that the illegal

19 (indiscernible) with California, I think. 

20 JUDGE WALLACE: If it was to or should go

21 as a horse shoe. We've never had a single state

22 Circuit before, but we're talking about what's best
29

1 for 20 or 30 years from now. Maybe a single state --

2 maybe 50 Circuits is okay.

3 COMMISSIONER: I assume the projected

4 growth is more for the string bean than it is for

5 California, although who really knows? I assume the

6 growth in the Pacific northwest and Arizona and Alaska

7 is likely to be at a larger percentage than --

8 JUDGE WALLACE: The growth is larger

9 outside of California than in California, although

10 California is growing. It was two-thirds and it's

11 less than two-thirds now. Over a period of time,

12 there will be more growth outside of California.

13 COMMISSIONER: By your line of reason,

14 were you saying, for example, the 11th Circuit is

15 fully designed?

16 JUDGE WALLACE: Is what?

17 COMMISSIONER: Fully designed. You have

18 three states in the southeastern part of the country.

19 Is that different from a northwestern state?

20 JUDGE WALLACE: Well, maybe. Although the

21 problem there is that there's a lot more federal

22 impact in those three states than there are in five
30

1 states in the northwest and it may be that making the

2 11th Circuit larger would have more of a generalized

3 approach to the Circuit. I frankly hadn't thought

4 about that. My focus has been more when I've been

5 asked a question about the northwest.

6 COMMISSIONER: We had a witness in one of

7 the prior hearings talking about this problem, how to

8 design the (indiscernible) One of the elements

9 involved, the fact that it was cultural opinion

10 wi]thin the region. Given the fact that we don't have

11 regions (indiscernible) then how do you find a region

12 for that Circuit? One suggestion was that cultural

13 affinity is one way of identifying a region

14 (indiscernible) Do you have any observations about

15 that?

16 JUDGE WALLACE: Yes. I disagree with it.

17 When you say cultural affinity, what you're saying is

18 there's a certain culture that can develop federal law

19 for that culture which is different from another

20 culture and the whole idea of nine Circuit law is to

21 be national and once we have the idea that there

22 should be different national law for different
31

1 cultures, seems to me we're going the wrong direction.

2 I would have to reject the principle.

3 COMMISSIONER: If you take on morning

4 (phonetic sp.) I see Judge (indiscernible) here and

5 voters. Maybe we'd better wrap up --

6 JUDGE RYMER: Do you suppose I could have

7 a chance?

8 COMMISSIONER: Sure. You ask any

9 questions you like, Browning.

10 JUDGE RYMER: Thank you. Since I see the

11 charge of the Commission as being a good deal broader

12 than just whether the 9th Circuit should or should not

13 be split, I'd like to take advantage of the thoughts

14 you've given to the administration of justice in the

15 country and world-wide to ask a few somewhat broader

16 questions, one of them being do you have, based on

17 your experience internationally, any suggestions that

18 might shed light on how our Court of Appeals ought

19 more effectively to be organized?

20 JUDGE WALLACE: We have had a fixation on

21 the number nine in the United States because there's

22 nine members of the Supreme Court and you'll see again
32

1 (indiscernible) no Court of Appeals should be more

2 than nine. Why? Because the Supreme Court is nine.

3 That fixation is not true overseas where large courts

4 are accommodated all the time. There's 138 members of

5 the Intermediate Court in the Philippines. They work

6 differently in some countries than others. In the

7 civil jurisdictions, because they don't adhere to

8 precedent, they can use larger courts so in Turkey you

9 have 240 members of the Supreme Court. So there's a

10 different way of approaching the law. 

11 But that set aside, they don't fear

12 largeness. They work with it. If large works best,

13 they work with large. We have not done that in the

14 United States. I just traced it back to a small

15 Supreme Court and a view that we have to look small

16 instead of looking large. My view on it is that we

17 ought to look and see which accommodates the future

18 best and if we look to that, we'll see there are

19 certain efficiencies in a large Circuit which will be

20 far more flexible in meeting future needs than smaller

21 Circuits.

22 JUDGE RYMER: You started off by talking
33

1 about the need to identify 10, 15, 20 years ahead or

2 project a mission (indiscernible) in changing times.

3 What are your thoughts on how that ought to be

4 defined?

5 JUDGE WALLACE: All right. It's an issue

6 that deals with our subject matter jurisdiction and it

7 seems to me that any view of how we're going to

8 function different has to come to grips with federal

9 jurisdiction. What is this small unique resource that

10 folks could do? We're always going to be less than

11 two percent of the total litigation. It's wrong12 headed just to continue to pump cases into Federal

13 Court because it's easy to do. Someone has to look at

14 that issue to determine what our mission is and, based

15 upon that, then to make as good a prediction of the

16 future as we can and then, having done that, then

17 apply the type of a solution to those needs that'll be

18 flexible enough to meet that or any change in the

19 future.

20 JUDGE RYMER: That sounds fine but in

21 terms of specifics, the political reality is that

22 Congress will probably continue to create business for
34

1 the federal system. If that's so and if that does

2 continue to be the case, then what efficiencies do you

3 suggest might impact the (indiscernible) of this

4 Commission?

5 JUDGE WALLACE: Okay. I'm willing to

6 grant the difficulty of getting Congress to reverse

7 itself and that the Commission, after determining a

8 mission of the court, may well consider the best way

9 to look at the future is moderate growth. That's what

10 the Long Range Plan Committee did and that's what the

11 Judicial Conference adopted, and I can't fault that.

12 I'm just suggesting we should not give up on the

13 effort. 

14 If, in fact, there's going to be a

15 moderate growth, then we can project what that growth

16 might be and then try to see what is the best way of

17 meeting that, having in mind growth may be different.

18 For example, we find out now at least in the 9th

19 Circuit, the growth is in a different type of cases.

20 But what is the best way to accommodate that growth

21 looking at what will happen in 20 or 30 years. 

22 Now, I think that most people would not
35

1 like to have 40 Circuits in the United States. IF

2 that's true, then now a decision needs to be made as

3 to how many Circuits. Now, maybe people won't agree

4 with me there should be five or six, but at least we

5 can let Circuits grow to see if they can accommodate.

6 The larger the Circuit, the greater the flexibility to

7 accommodate change. I think the 9th Circuit has

8 demonstrated that. There's efficiencies that have

9 been developed to scale of size and if any -- I

10 shouldn't say any -- most people who would come out

11 and live in the 9th Circuit for a year would see those

12 efficiencies because they rid themselves of prior

13 prejudices based upon their own experience.

14 So it seems to me that if you look, even

15 though it's an inexact guesstimate of the future, it

16 has to be made and the Commission is the best place to

17 make it or have it made. Having done that, then the

18 question is what's the best way to meet that in the

19 future? What structure?

20 JUDGE RYMER: (indiscernible) your

21 pyramid. One of the suggestions that's been made for

22 structural change is in some way to give some
36

1 Appellate function to the District Court. The analogy

2 here, the 9th Circuit's bad experience, it occurs to

3 me is already analogy for how it might function. Do

4 you have any thoughts on that?

5 JUDGE WALLACE: There is an obvious

6 candidate and that's the Social Security cases. Why

7 the Court of Appeals should be involved with another

8 level of appeal is mystifying to me although I grant

9 you that there should be a uniformity of law. But it

10 seems to me clear that the District Court can function

11 as an Appellate Court in certain areas. That would be

12 a typical example.

13 The District Court would be the final

14 termination on Appellate body for issues of fact and

15 the Court of Appeals would only take issues of law,

16 whether that's automatic by law or whether it's by

17 sersurary (phonetic sp.) doesn't matter. You're

18 using, you're functioning within the District Court.

19 There's another area that we need to look

20 at also and that's the Administrative Tribunals. We

21 always allowed the ALJs to be within the organization

22 and, as a result, the Court of Appeals takes much more
37

1 lip than they should. But 20 years ago, Bob Door

2 (phonetic sp.) came up with the idea of generalized

3 ALJs and no one had moved in that direction at all.

4 It could cut off a certain amount of work if there was

5 an administrative structure which was separate from

6 the agencies. So there are avenues of separate

7 Appellate functions now available to us, and I think

8 it's something we need to look into.

9 JUDGE RYMER: One final question and that

10 is following up on Professor Meador's question. There

11 are those who say that when a Circuit gets large,

12 whatever that means, but gets large, that it just

13 becomes impossible to expect that a judge who lives in

14 Chicago to understand in a meaningful way the conthet

15 in which litigation coming from, say, Alaska, Hawaii,

16 arises. In other words, there should be some more

17 consideration to the smaller regional culture. Do you

18 have an observation on that or the geographic

19 organization of the Circuit?

20 JUDGE WALLACE: Well, I have a strong

21 feeling that they shouldn't be too close to the

22 culture. It's not only an issue of diversity on the
38

1 Court, you get a finer blend of an opinion, but it's

2 to make sure we don't become provincial or parochial

3 as to certain cultures for federal law. The federal

4 law is supposed to be as even as it can be whether

5 you're in Hawaii or Maine. The larger Circuit has a

6 tendency to do that. A smaller Circuit that only has

7 parochial views will have a tendency to have interpret

8 federal law to match that parochial view. I think

9 it's the wrong way to go.

10 PROFESSOR MEADOR: Following up on Judge

11 Rymer's question about (phonetic sp.) situation and

12 you find out quite correctly that in many other

13 countries of the world you have huge courts,

14 particularly one I'm more familiar with than others in

15 civil law countries of Europe, the intermediate level

16 will have courts with over 100 judges. My observation

17 of that (indiscernible) is the only way

18 (indiscernible) and the way they operate is by what I

19 call subject matter (phonetic sp.) matter issues. You

20 don't have 150 judges sitting randomly in Canada

21 raking over the entire (indiscernible) You have maybe

22 10 positions on the court and each position has a set
39

1 of cases. 

2 Now, what would you comment on that? If

3 we're going to (indiscernible) the large Circuits or

4 we will grow into them and you have 30 or 40 different

5 judges in a large Circuit, sitting in subject matter

6 positions would be one of the concerns and that is

7 that (indiscernible) of the law and so on. You like

8 to be known by your decision makers (indiscernible) is

9 a major factor (indiscernible) Do you have any

10 observations about getting into that kind of system in

11 our courts?

12 JUDGE WALLACE: Well, yes. I thought

13 about that and I read some materials on that and

14 articles which I think are very helpful. In most of

15 those court systems, especially the ones in Europe,

16 are civil law jurisdictions which don't have

17 precedential issues. That is they don't care what the

18 town next to them did. And so the subject matter

19 jurisdiction is more for ease of the Court in deciding

20 cases rather than precedential (indiscernible) If

21 you're dealing with one issue all the time, you know

22 the law better.
40

1 The down side as I see it and this has to

2 do with the particular way we handle things in the

3 United States is we go on precedent. Truly maybe one

4 in five cases are precedential but they are

5 precedential. And as I see the evolution of the law

6 in the United States, it has great difficulty staying

7 within its cubby hole. For example, you take a patent

8 case (phonetic sp.) and automatically there's a cross

9 claim for an antitrust violation. And the

10 interaction, because of the dynamic large economy, has

11 overflow from one particular cubbyhole into another

12 and, because we're not a civil law jurisdiction, it

13 seems to me that the generalist approach has more

14 benefit to the United States at the national level,

15 that is where we're supposed to be a small court

16 handling a small number of cases.

17 So my view so far has been that we

18 probably shouldn't go to subject matter jurisdiction.

19 I understand that we did so in the Federal Court of

20 Appeals. I was against that from the beginning. I

21 still am. I think it was wrong, headed by some people

22 that didn't like to do patent law and I think we've
41

1 got to overcome that. But I thought about that, Dan,

2 especially because you've written about it but so far

3 I've concluded I don't think it's in the best interest

4 of the United States.

5 COMMISSIONER: Thank you so much for

6 sharing (indiscernible)

7 JUDGE WALLACE: You're welcome.

8 COMMISSIONER: Thanks very much.

9 COMMISSIONER: Judge Wood.

10 JUDGE WOOD: Good morning. I'm Harlington

11 Wood from the 7th Circuit. As you know, this Circuit

12 is comprised of three states, Indiana, (indiscernible)

13 Wisconsin. We have 11 active judges here assisted by

14 a number of senior judges, as I am. There's nothing

15 in particular that this Circuit has to complain about.

16 We're satisfied with the number of judges we have.

17 We're satisfied with our service boundaries. As far

18 as we can tell, there may be others in the audience

19 you'll hear from today who have complaints about the

20 subject and suggestions would be welcome, but as far

21 as we can tell, we think we're operating pretty well.

22 I'm really appearing here to talk a little
42

1 about the 9th. You're already heard the very informed

2 comments about the 9th but I was asked to appear by

3 Chief Judge Hoke (phonetic sp.), former Chief Judge,

4 to give just personal perspectives from a judge who

5 has worked and served on the 9th. I've been out there

6 six times since 1993 for about a week at a time.

7 Worked in Seattle, San Francisco and with Judge Rymer

8 down her way. So my brief comments are not a

9 scholarly analysis of the thing or a statistical

10 analysis. They're just personal perception from

11 having been a part of it.

12 So that's given me a chance to get to know

13 the judges, many of them, not all of them, very well.

14 I'd say that I haven't met a judge on the 9th Circuit

15 yet that I did not like or did not respect in spite of

16 the differences that we had on some of the cases. In

17 that time, I helped dispose of about 184 cases.

18 During this time, I've worked not only on my own

19 Circuit but on seven other Circuits including 6th. I

20 enjoyed that experience, too.

21 The judges I've found on the 9th are very

22 well prepared for oral argument which make oral
43

1 argument a worthwhile exercise and then the conference

2 that follows the oral arguments that are informed and

3 very helpful in reaching a decision in the case. Then

4 when it comes time to distribute a draft, a memo

5 disposition or an opinion, I've found the working

6 relationship very good. You can exchange ideas then,

7 suggestions for improvement, any corrections, things

8 of that sort, back and forth by phone or by fax. I

9 haven't been a part of yet any cases that has not been

10 thoroughly considered.

11 The residing judge of the panel has always

12 been most helpful to me and with the Circuit's

13 procedure. I can't tell Judge Rymer anything about

14 the 9th Circuit because she's been one who has taught

15 me a great deal about it herself. 

16 I'm of course aware of the controversy

17 about the size of the Circuit but, as a visiting judge

18 out there, I've seen no indication that the size is a

19 handicap. To the contrary, I sense among the judges

20 a certain amount of pride in being on the 9th Circuit

21 and a strong determination to make it work better and

22 better in the future. 
44

1 The Circuit has had outstanding Circuit

2 Judge leadership, Chief Judge leadership.

3 COMMISSIONER: You haven't seen that there

4 is any more (indiscernible) Circuit conflict in the

5 9th than there is in the 7th?

6 JUDGE WOOD: I really don't. We have

7 plenty of disagreements on this court about cases, but

8 I found that --

9 COMMISSIONER: I mean by that that a panel

10 sitting will go one way with this panel and then,

11 rather than following the precedent of the prior case,

12 you have a conflict.

13 JUDGE WOOD: No. I really haven't

14 experienced that, Judge, because I think one of the

15 reasons is they're very careful about it and they keep

16 looking at it right up to the last minute and with our

17 computers and all that modern technology, there's very

18 little chance I think to get into the conflict inside

19 and miss something inside the Circuit. Maybe

20 something comes up the day before but if there isn't,

21 my experience has been you find out about it right

22 away and take another look at the thing.
45

1 PROFESSOR MEADOR: Let me ask you this

2 question. I don't know whether you can answer this or

3 not (indiscernible) Do you have any sense in the

4 cases you've sat on (indiscernible) because they're

5 the only two judges on the panel who are not circuit

6 judges, the extent to which in the case before you

7 having a judge sitting who comes from the state in

8 which the case comes from. Do you have a sense of how

9 that happens (indiscernible) say, a case coming out of

10 Montana and you're sitting with two other judges.

11 What's the likelihood that one of these judges would

12 be from Montana?

13 JUDGE WOOD: I don't suppose it's very

14 high, but there is that chance. I'm not sure right

15 now how many judges are from Montana. But I think

16 there's a feeling among the judges that regardless of

17 where you're from, you're all seeking the same thing.

18 I think the judges regard themselves as American

19 judges, not like clinical precinct committee men.

20 PROFESSOR MEADOR: I take it it was never

21 a point that occurred to you as you sat there in a lot

22 of cases, there's no judge sitting here from the state
46

1 that the case comes from. That's not a point that

2 occurred to you as a matter of observation?

3 JUDGE WOOD: I think so, but that happens

4 here, too. Sometimes all the judges on our court are

5 from Chicago, Illinois. But I think we try get above

6 the local problem.

7 COMMISSIONER: One of the political

8 problems (indiscernible) to it is that the perception

9 that as California judges you might have about two10 thirds on the bench dominate the Circuit

11 (indiscernible) and that the law is California law

12 whether the state is Montana or Washington or

13 whatever. I have never sat there and I just don't

14 have any personal view about it. That is something

15 that is said, it is a perception that the California

16 judges dominate the Circuit. But you don't

17 necessarily see any downside of that or even maybe

18 that it's a fact?

19 JUDGE WOOD: I've heard that, too, except

20 you know the California judges on the Court of

21 Appeals, they're all different opinions, persuasions

22 and backgrounds just the same as we are here.
47

1 COMMISSIONER: No different than Montana.

2 JUDGE WOOD: I think there are more

3 similarities than differences and I think by the time

4 you get to the level of the Court of Appeals you're

5 looking above and beyond, like a state does. You're

6 looking at the national scene. I think they

7 (indiscernible) they're on the national scene. They

8 want to do something look at the whole country, not

9 just for one particular state.

10 PROFESSOR MEADOR: The 7th Circuit is a

11 relatively compact Circuit. There are three states

12 only and definitely a definable region and that is

13 unlike the 9th Circuit. Do you see any differences

14 between the way these two courts function? You've sat

15 on both and they're contrasting Circuit

16 configurations. Do you see any differences at all

17 coming out of that?

18 JUDGE WOOD: There are differences, but I

19 don't think they're really significant. During World

20 War II I found out how far (indiscernible) was

21 (indiscernible) Alaska, Hawaii a number of times.

22 That difference now is practically nonexistent. Our
48

1 modern means of communication, our jets and all that.

2 And here it's about the same thing. The timing is no

3 different in our communicating with ourselves here

4 than in the 7th than it is out there, as far as I can

5 tell. I never experienced those things. Of course,

6 mine was very limited, six times, but I haven't seen

7 it.

8 COMMISSIONER: In our Circuits there seems

9 to be -- we have (indiscernible) and there is some

10 advantage, we think or I think, to having judges who

11 understand the local procedures. That is, the

12 procedures, civil procedure, criminal procedure, is

13 different in Tennessee from in Michigan and there are

14 quite different institutional (indiscernible) in the

15 state (indiscernible) and the perception, our

16 perception is that there's something valuable in

17 knowing those local conditions. You're suggesting --

18 and, of course, that would be true in most

19 (indiscernible) here in the 7th Circuit. You want to

20 find out what the real (indiscernible) procedure is

21 and (indiscernible) easily find that out.

22 (indiscernible) That is not something that you saw as
49

1 a (indiscernible)

2 JUDGE WOOD: Well, I think what you say,

3 there's a lot of truth to that but I think that when

4 you're on the Circuit level it doesn't take you long

5 to get familiar with the processes in the other

6 states. You have to, particularly in diversity cases

7 and things of that sort, and we all have at our

8 disposal the laws of the states which California has

9 more than that. I wouldn't see it as any -- I see it

10 as some benefit but I wouldn't see it any reason to

11 split a Circuit in order to cut down. The judges in

12 the bigger Circuit have to strive more to get that

13 bigger picture, but they do. 

14 The 5th Circuit went to (indiscernible)

15 and handled it very nicely but down there, my

16 understanding was that most of the judges favored it

17 and (indiscernible) I was invited to sit with the new

18 Circuit very early on. They looked like they were

19 doing very well with it and they have since. But I

20 don't see the need yet at least to subject the 9th

21 Circuit to some misty operation because of changes in

22 relationships and all the things we've been learning
50

1 and working on will be split apart somehow. 

2 You even have a problem with possibly

3 creating two Circuits getting more Circuit conflicts

4 which have to be resolved in Supreme Court where if

5 you had one Circuit, you might be able to work out

6 those things in the Circuit.

7 JUDGE RYMER: One of the obvious ways in

8 which the 9th Circuit functions quite differently from

9 any other is in the limited inbank (phonetic sp.)

10 process. I know that you have been involved in some

11 cases which have gone through an inbank process

12 without actually serving the court, of course. Do you

13 have any views about how you think the 9th Circuit

14 resolves either its intra-Circuit differences by

15 comparison with the other Circuits in which you've

16 sat?

17 JUDGE WOOD: Well, I know that...

18 [END TAPE 1, SIDE A; BEGIN SIDE B]

19 JUDGE WOOD: ...but I don't see that as

20 any reason for a major overhaul. You know, a District

21 Judge has already looked at the thing. You've got

22 three panel judges on the panel who have looked at it
51

1 and then you have a large segment, representative

2 segment, of the rest of the judges who've looked at

3 it. Compared with the rest of the world, that's a lot

4 of judicial review.

5 COMMISSIONER: This (indiscernible) of

6 course is something that the 9th Circuit could change

7 if it found that it (indiscernible) a less stable

8 system (indiscernible) The 9th Circuit judges, it's

9 not like they use the same panel of judges to

10 (indiscernible)

11 JUDGE WOOD: That's different than ours.

12 It might vary more than ours. I don't know. But it

13 looks to me like the judges with the proper view of

14 their position striving to get above this

15 (indiscernible) concerns come out about the same way.

16 COMMISSIONER: May I go back and pick up

17 a point that (indiscernible) about the old 4th Circuit

18 problem that was (indiscernible) You indicated that

19 seems to be working all right. What is the

20 distinction in your mind or the (indiscernible)

21 distinction between the old 5th Circuit problem and

22 the current 9th Circuit problem? That is to say, you
52

1 have a large (indiscernible) You say it seems to be

2 working well. You've now got a large 9th Circuit.

3 What is the problem (indiscernible)

4 JUDGE WOOD: Well, I think one of the

5 reasons, as I understand it -- I haven't made any

6 study of it -- was that the judges down there all

7 favored it. I understand that would help --

8 COMMISSIONER: (indiscernible) The

9 question is why did it work well then and not work

10 well in the 9th Circuit? (indiscernible)

11 JUDGE WOOD: It might work in the 9th

12 Circuit. I don't know. I just don't see the need for

13 it and I think there was general support for it. The

14 circumstances were different. At the 9th you do have

15 different population. Southern California is

16 different. And different pursuits and different ideas

17 and all that. But that's really a part of the change

18 in America and I think a mixture of those things is

19 good for everybody.

20 COMMISSIONER: We don't know how the 5th

21 Circuit would have worked.

22 JUDGE WOOD: If it had been left intact?
53

1 Yes. I don't have any idea. I've been down there and

2 it seems to both parts are working well. But it also

3 seems the 9th is working well. They treat me when I

4 go out there just like I was a member of the court

5 and I've found no trouble in communicating from

6 Illinois with them any different than if I'd been in

7 San Francisco. And there have been, I've found, very

8 collegial working relationships among the judges. 

9 COMMISSIONER: In reading the legislative

10 history and press accounts of why this Commission

11 exists, the main reason is the 9th Circuit problem and

12 the desire of the House to defer a decision on that

13 question and to create (indiscernible) If the

14 Commission, although it may recommend not splitting

15 the 9th Circuit, if we have to address the question of

16 even if that is not accepted and (indiscernible) what

17 kind of split should occur? That means that the

18 question really is (indiscernible) like to split a

19 state (indiscernible)

20 JUDGE WOOD: I'm sorry I couldn't hear all

21 that.

22 COMMISSIONER: If we're going to split,
54

1 that's the next question, if the 9th Circuit was going

2 to be split, would you split California?

3 JUDGE WOOD: Well, I'm fairly well

4 acquainted with California. I was stationed there for

5 a little while during the war as Deputy Chief of Staff

6 with the (indiscernible) getting ready for station in

7 Japan. It just seems like one fine unit to me, even

8 though there are differences. I think it's very

9 difficult, as I heard Chief Judge Wallace say, former

10 Chief Judge, about the relationship between part of

11 California. I don't know really how you would split

12 it unless you're going to just separate north and

13 south. I heard somebody say split it down the middle.

14 I don't see how that would solve anything. I'm not

15 solving. The Commission has to make these decisions.

16 But I just wanted to give you the feelings of a judge

17 who --

18 COMMISSIONER: You're been very helpful.

19 JUDGE WOOD: Well, I don't know if I've

20 been helpful but it may be a different perspective.

21 Judge Rymer said she was going to cross examine me.

22 JUDGE RYMER: Thanks very much.
55

1 JUDGE WOOD: Let me say that Thomas

2 Fitzpatrick is here, our Circuit Executive who's on

3 the agenda later this afternoon who knows more about

4 this Circuit than anybody and he can answer questions.

5 COMMISSIONER: (indiscernible) his views.

6 JUDGE WOOD: Beg your pardon?

7 COMMISSIONER: We'll get the benefit of

8 his views.

9 JUDGE WOOD: We think he's one of the best

10 Circuit Executives in the country. Thank you all very

11 much.

12 COMMISSIONER: Thank you so much, Judge

13 Wood. 

14 The next person is Thomas R. Meites on

15 behalf of the Chicago Council of Lawyers.

16 MR. MEITES: We appreciate the chance to

17 appear before you. As practicing lawyers, we have a

18 different agenda and a different perspective than the

19 judges do. We have no views on the 9th Circuit.

20 We're here and we like it here and we're staying here.

21 But I think we have something to contribute because as

22 we read the Chief Justice's charge to this Commission,
56

1 we understood it also to ask for comments on what is

2 working in the Court of Appeals and maybe what's not

3 working as well. That's the side of the ledger we're

4 on.

5 The Council is a public interest bar

6 association established in 1969 here in Chicago with

7 1,200 members and over the years we've devoted a lot

8 of our efforts towards evaluating courts, both state

9 and federal. We evaluated the District Court,

10 Northern District of Illinois on three occasions and

11 in 1994 we published an evaluation of 7th Circuit. 

12 In our work we try to look at courts from

13 the point of view of our point of view which is active

14 litigators and we try to treat the courts as another

15 arm of government, even though lawyers have trouble

16 doing that.

17 JUDGE RYMER: Unfortunately, I haven't had

18 a chance to read your evaluation. Can you just in a

19 -- not the results, that's not interesting to me at

20 the moment, but what were the criteria that you used?

21 MR. MEITES: There are two parts to the

22 report. One part was to look at the individual judges
57

1 and in a way it's kind of like the students grading

2 the professor after a course. There's a lot of

3 comments that came in to lawyers that we looked at and

4 some was people didn't like the --

5 JUDGE RYMER: Again, apart from

6 individuals, some of whom can be wonderful and some of

7 whom can not be, but the system.

8 MR. MEITES: Okay.

9 JUDGE RYMER: What criteria did you use

10 to evaluate the system of the Court of Appeals as a

11 whole?

12 MR. MEITES: That's the more interesting

13 part of it for this morning. We looked at the

14 procedures of the Court. We looked at oral argument.

15 We looked at assignment of panel opinions. We looked

16 at page limitations. We looked at conduct of oral

17 argument. We looked at nuts and bolts issues that we

18 know about. We don't know anything about how cases

19 are conferenced. We don't know anything about how

20 decisions are written. But we do know the public face

21 of the court. And like every court, the 7th Circuit

22 had procedures that we didn't like and we brought them
58

1 to the Court's attention. 

2 For example, we felt the court was too

3 hard on page limitations. That matters to lawyers,

4 matters to courts. The public doesn't understand it.

5 We're the only ones who --

6 JUDGE RYMER: It matters to the judges who

7 have to read it, too.

8 MR. MEITES: But we're the only people who

9 can raise that. The problem we had -- not problem --

10 is that there's no feedback. We know that. The Court

11 is not going to ever tell us, and they probably

12 shouldn't, that we thought your survey was great, that

13 we were too hard on Smith, not hard enough on Jones.

14 We have to assume that it was worth the effort and

15 that's kind of an act of faith. 

16 Our first recommendation is, based on our

17 experience, no other bar association does this and

18 it's a tremendous amount of work for us. In the four

19 years since we did our appraisal of the 7th Circuit,

20 there's been no evaluations done of any other Circuit

21 and there was never one before ours. So our first

22 recommendation is that this evaluation function be
59

1 institutionalized. The Courts have a wonderful

2 resource in the Federal Judicial Center. They are

3 very, very talented people. We know that from the

4 surveys are public.

5 JUDGE RYMER: The key thing, of course, is

6 to that what you do is you do it. To some degree,

7 that's exactly what the Commission is about which is

8 evaluating whether the present structure can be

9 improved or changed to meet changing circumstances.

10 What would you, as somebody who's done a lot of this,

11 suggest that we look at?

12 MR. MEITES: There are two parts. There's

13 the numbers part. How long do courts take to reach

14 decisions? How many cases never reach a decision on

15 the merits? What kind of delays between oral argument

16 and final decision? What kind of cases are denied for

17 this full disposition? Is there some bias in the

18 Circuit against Social Security appeals or employment

19 cases or whatever. It's not biased since the court

20 goes out of its way to avoid areas of cases on the

21 merits, but that's what's happening. 

22 One thing we believe is true about courts
60

1 is they have no capacity to do self-analysis. It's

2 not their job. They don't have the resources, they

3 don't have the people. What we would recommend is

4 that for each Circuit there be a periodic self5 evaluation with input from the local bar because the

6 court can only see itself. It can't see how others

7 see it. I'm not so --

8 COMMISSIONER: Could I (indiscernible)

9 that Congress did set up a system specifically for

10 that purpose and maybe it doesn't work. It doesn't

11 work in some Circuits and works in others. That is

12 the system of judicial conferences. Most of the

13 Circuits now have judicial conferences once a year or

14 once every two years and invite lawyers generally, not

15 just selective ones. And the purpose of those

16 conferences is to evaluate the conditions of justice

17 in the courts within the Circuit. So that exists.

18 You're saying in the 7th Circuit it does not work that

19 way.

20 MR. MEITES: Oh, no. No. I think the 7th

21 Circuit's judicial conference is typical of the

22 judicial conferences. I'm looking for a more
61

1 systematic review, not three days twice a year, but

2 some kind of both a quantitative analysis and also

3 some kind of a formal questioning process. There are

4 all kinds of excellent survey techniques that are

5 commonly used to evaluate the performance of all kinds

6 of organizations including governmental organizations

7 and it hasn't occurred to us why the courts should use

8 these tools when other both corporate and government

9 agencies do use them. 

10 I'm not talking about telephone surveys.

11 I'm talking about something that the Federal Judicial

12 Center designs with care for the court's use. But I

13 think that there's no real basis to believe that

14 informal kind of talks are going to make the

15 difference. We found in our work where we

16 interviewed hundreds of lawyers that unless you get a

17 broad cross section of the bar a lot of people don't

18 come to judicial conferences. A lot of practicing

19 lawyers, you know, lawyers self select themselves for

20 that. Unless you reach out to those people, you're

21 not going to get even the whole picture but even two22 thirds of the picture.
62

1 COMMISSIONER: Could you give me an

2 example other than personal of the evaluation of

3 judges personally which I don't think is part of our

4 charge here, the kind -- particular criticism that you

5 think you have with 7th Circuit since that's the one

6 you have looked at that is subject to change if the

7 judges fully considered your recommendation.

8 MR. MEITES: Let me give you a very

9 practical one. Several occasions judges on the 7th

10 Circuit in the last X years have asked lawyers their

11 views on cases that are not cited in either side's

12 brief. Presumably the judge preparing comes across

13 with a case in the judge's mind. That puts the lawyer

14 in a terrible position. Put aside being embarrassed.

15 That's what lawyers get paid for. But really it is

16 not going to help the court at all and may in fact

17 lead to lawyers making an unfortunate concession. One

18 thing we suggested in our survey is if the court finds

19 this kind of case that a simple phone call the day

20 before the oral argument from the clerk's office to at

21 least let the lawyers read that. 

22 That's a very simple concrete issue that
63

1 can be solved if the court were aware that it's a

2 problem. The court is not trying to embarrass anyone.

3 It just doesn't occur to them. And you're not going

4 to get that kind of feedback unless there's some --

5 COMMISSIONER: It does occur with some

6 frequency in Courts of Appeal that if a judge finds a

7 case uncited or recently decided (indiscernible) may

8 control the outcome of the case, that you are asked to

9 come to court prepared to discuss that. That's what

10 you're saying.

11 MR. MEITES: The court should do that if

12 it's going to ask the lawyers questions about it.

13 That's the kind of nuts and bolts issue that courts

14 aren't going to know about unless they reach out to

15 find out how it really works on the other side.

16 PROFESSOR MEADOR: (indiscernible) that's

17 a fairly particularized (indiscernible) Out of your

18 evaluations though can you tell me out of that any

19 suggestions to this Commission as to ideas or

20 proposals it might consider for the system as a whole?

21 Did you run across some malfunctions or some problems

22 that you think the Commission ought to look at in
64

1 terms of the federal system as a whole?

2 MR. MEITES: I think that from our point

3 of view the largest problem that we have as lawyers is

4 we take too many appeals and the largest problem that

5 the Courts of Appeals has is too many appeals are

6 taken. And the systematic or the endemic question is

7 is there any way to solve that problem? And our other

8 recommendations go to that. Lawyers don't want to

9 take appeals they're going to lose. I guarantee that

10 absolutely true. How can lawyers get a better idea of

11 which appeals have a chance of winning? And the rest

12 of our recommendations go to just that. 

13 I brought with me a publication of the

14 Administrative Office of the Court, their annual

15 statistical tables. 

16 PROFESSOR MEADOR: Well, does that have

17 anything to do with the constitution of the panel. If

18 you know who the panel is or if it is a relatively

19 small court and there is a clear law about that in the

20 Circuit, then you would be assisting in making the

21 decision about whether to appeal or not. In other

22 words, if the law of the Circuit is somewhat instable
65

1 (phonetic sp.) for whatever reasons, you're more

2 likely to appeal than if the law of the Circuit is

3 fairly stable and well known. Right?

4 MR. MEITES: That is right in, I suppose,

5 a theoretical sense but lawyers are optimists by

6 nature and they believe that they can distinguish

7 their case. Not always. But maybe too often. What

8 we don't know is there's no quantification of what the

9 success rate in a particular kind of case is. The

10 figures published by the Administrative Office simply

11 list outcome by case type all civil appeals, all

12 government appeals. That doesn't help us at all in

13 making predictions about how this Circuit feels about

14 insurance companies appealing in diversity cases.

15 COMMISSIONER: Judge (indiscernible) I

16 guess the most comprehensive book recently about the

17 Court of Appeals. He makes the point that appeals

18 have arisen because of the instability of Circuit law

19 rising from more judges, intra-Circuit conflicts and

20 different nuances in cases that tends to be the result

21 of too much law and that this produces appeals that

22 wouldn't otherwise occur. 
66

1 MR. MEITES: Well, that's a view of what

2 motivates lawyers and clients which I just don't think

3 is right. From the other side of the trenches, I

4 think it's quite different (indiscernible) than that.

5 We don't know the judge we're going to get obviously

6 when we file an appeal and there's no Circuit that's

7 so small that you have any realistic method of

8 guessing your panel.

9 COMMISSIONER: Would it be helpful if you

10 did?

11 MR. MEITES: No. I think that's a

12 terrible idea because we all believe that there's a

13 wide diversity of judges on the Courts of Appeals.

14 You've got some judges you know you're going to lose.

15 You've got some you know you're going to win. But

16 part of the process I think is keeping it random until

17 you arrive or shortly before argument.

18 What would help us though is knowing what

19 is this Circuit's experience in this class of cases.

20 I'll tell you, in the 7th Circuit insurance companies

21 that are Appellants in diversity cases lose. They

22 just do. Maybe they should, maybe they shouldn't.
67

1 But I don't think they know that because there is no

2 published statistics by the Administrative Office by

3 category of case and identity of Appellant, Plaintiff

4 or Defendant.

5 If you want to cut down the number of

6 appeals that have small chances, it seems to me,

7 assuming Chief Judge Posner's rational universe of

8 lawyers, then you've give them more information. But

9 the courts don't provide that information. They just

10 don't tell us that. Now I think I know why they --

11 COMMISSIONER: -- statistical studies

12 about (indiscernible)

13 MR. MEITES: Right. The only thing we get

14 is how many reversals are there all civil cases. That

15 doesn't tell us anything. What I would want to know

16 if I were an insurance company in a diversity, I lost

17 the trial. Should I appeal? It's going to cost me X

18 dollars. What's the success rate for insurance

19 companies, Defendants and Appellants, in insurance

20 cases? If I knew that, I could make a rational

21 decision about what my chances were in this case.

22 There's no published numbers on that. The
68

1 Administrative Office has all of those figures. They

2 don't publish them. Seems to me if you all want to--

3 COMMISSIONER: I don't know if they do

4 have that particular figures. They have a lot of

5 figures that they publish each year about cases, but

6 I don't think that outcomes for particular

7 classifications (indiscernible)

8 MR. MEITES: No, they don't publish that.

9 And I'm not talking about that particular figure.

10 What I'm suggesting to you, if the volume of appeals

11 is to be controlled or alleviated at all, then more

12 information is a device that may lead to that.

13 PROFESSOR MEADOR: Do you think it makes

14 any difference whether the Circuit is a relatively

15 small Circuit like the 7th or the 1st and has a

16 relatively small number of states within it or is a

17 large Circuit that is designated particular unity

18 within and among the states in the Circuit.

19 MR. MEITES: I think it matters in one

20 sense. If there's a number of states, you're likely

21 to get more diverse backgrounds among the judges.

22 That's a fact. That's a political decision --
69

1 COMMISSIONER: Is that good or bad or

2 neither?

3 MR. MEITES: We take the judges we're

4 dealt. It's hard to ask a lawyer if they'd like

5 different judges because we don't -- I don't have

6 views. But there's another advantage to that kind of

7 diversity, is that from a lawyer's point of view you

8 would expect that a diverse group would have more

9 opinions to discuss rather than coming from a similar

10 background.

11 Another problem we complained about in our

12 survey in the 7th Circuit specifically is we felt that

13 the Court in assigning opinions to a particular judge

14 (indiscernible) panel was assigned on the basis of

15 perceived expertise. If one judge knew a lot about

16 securities law, he or she would get the securities

17 opinion. We criticized that because we didn't think

18 there should be a judge deciding all the securities

19 cases in a Circuit. To the extent there's a larger

20 Circuit, you avoid that problem. So that is an

21 advantage of a larger Circuit.

22 PROFESSOR MEADOR: Why do you say that
70

1 having a (indiscernible) of decision makers, that is

2 a lawyer who knows that in this particular case if I

3 take an appeal, I'm going to get Judges A, B, and C,

4 as distinguished from not knowing what judges you'll

5 get. Why do you say that would not affect the

6 lawyer's decision as to whether to take an appeal?

7 MS. HARRIS: It would if I knew it would

8 be A, B, and C but there's no Circuit so small that I

9 can meaningfully make that prediction.

10 PROFESSOR MEADOR: No, but I mean suppose

11 they are arranged that way. I know it doesn't exist

12 now. But suppose you had a known body of judges who

13 were going to decide your case. Would that make a

14 difference?

15 MR. MEITES: Our state court system -- I

16 can answer that from experience. Our state appellate

17 system in Cook County, which is where we are, has I

18 think six districts or divisions and there's four

19 judges or sometimes five in each division. You're

20 assigned a division the day you file your notice of

21 appeal. So it is your system. You actually know the

22 panel that you're going to get. There's no indication
71

1 that that either increases or decreases the number of

2 appeals.

3 PROFESSOR MEADOR: I understood that is

4 only after you take the appeal. Is that correct?

5 MR. MEITES: It's the day after you take

6 the appeal. You've invested nothing in the appeal. 

7 PROFESSOR MEADOR: (indiscernible)

8 MR. MEITES: For free.

9 PROFESSOR MEADOR: But you don't think on

10 knowing who the judges are going to be affects whether

11 the appeal is dropped.

12 MR. MEITES: Not using the state court

13 example. It may be discouraging to proceed but you go

14 ahead.

15 PROFESSOR MEADOR: You as a lawyer, why

16 does that not make any difference knowing who the

17 judges are?

18 MR. MEITES: I think there are a couple of

19 reasons. One is that (indiscernible) litigators added

20 to -- you play the hand you're dealt. No matter who

21 the judge is, you have to go in the courtroom

22 believing that if you present your case adequately,
72

1 you'll at least get a fair hearing. 

2 PROFESSOR MEADOR: You have a hope.

3 MR. MEITES: That's right.

4 PROFESSOR MEADOR: You're going to make a

5 (indiscernible)

6 MR. MEITES: That's right. That's our

7 job. So if you're going to believe that because you

8 got a judge who's adverse to your position you should

9 stay home, you shouldn't be doing this job because at

10 least half the time that's what's going to happen,

11 particularly in a district court where we practice

12 extensively. You know from day one the judge you got

13 and some judges are just not going to like your kind

14 of case. Well, you don't go home.

15 PROFESSOR MEADOR: But isn't it part of a

16 lawyer's job in the sense they take an appeal whether

17 than cause the client to invest a lot more money,

18 isn't part of that the sense, the likelihood or

19 unlikelihood of success and if you know the decision,

20 doesn't that help you make that appraisal?

21 MR. MEITES: Yes, it would. I think that

22 in the practical manner there are ways that are
73

1 effective which I'm arguing for. In any appellate

2 court that's large enough to have numerous decision

3 makers, published numbers of outcomes, and you can get

4 a pretty good idea overall what your chances are. 

5 COMMISSIONER: But that large investment

6 of money is with you. Then that is a counter

7 (indiscernible) I mean by that on one hand you may

8 think not much chance of -- it's an uphill battle

9 here. But it's worth (indiscernible) and that is

10 influenced by the fee system which provides the lawyer

11 with an incentive for taking a shot.

12 MR. MEITES: Well, yes. You have to

13 divide the fee issue in, too. There's contingent

14 cases where the lawyer is investing his or her own

15 capital.

16 COMMISSIONER: I'm asking that question,

17 should there be some thought given to changing the

18 incentive system of fees?

19 MR. MEITES: Well, the Council has a clear

20 and consistent position on that. The answer is no.

21 Any systems which taxes the right to appeal with a

22 (indiscernible) is inevitably going to discourage
74

1 large classes of litigants and large classes of cases

2 from getting an appellate review. We all have the

3 English system where there's fee shifting at the

4 trial courts which has stifled, what we understand,

5 large areas of law. We do not have any kind of

6 appellant fee shifting in the United States and we

7 shouldn't.

8 COMMISSIONER: Do you handle criminal

9 cases?

10 MR. MEITES: No, I do not.

11 COMMISSIONER: Do people in your group?

12 MR. MEITES: Yes.

13 COMMISSIONER: You know, we've had

14 tremendous increase in the number of criminal cases

15 since '86 with passage of the Simpson law about three16 or four-fold. (indiscernible) I really don't know

17 exactly what the change (indiscernible) That's become

18 a serious problem (indiscernible) because

19 (indiscernible) person goes to jail (indiscernible) Do

20 you have any thoughts about how that system might be

21 changed (indiscernible)

22 MR. MEITES: Well, I think the Council has
75

1 taken and does take the position that the present

2 sentencing system is perverse. It mis-allocates

3 responsibilities and deprives District Court judges of

4 flexibility they need and forces placing a tremendous

5 burden on the Appellate Courts. You've nothing to

6 lose to take a criminal case. It's an absolute given.

7 And on almost every case your appeal will be paid for

8 by someone else, usually the United States, and you'll

9 lose. Something like nine out of 10 criminal appeals

10 are unsuccessful in this Circuit and elsewhere.

11 That's a crazy system where you're putting

12 all this material through the system knowing that it's

13 going to make very little difference.

14 COMMISSIONER: How can we change that?

15 MR. MEITES: Well, I think you have to go

16 back to sentencing. That is what's driving the train.

17 PROFESSOR MEADOR: This was true before

18 the (indiscernible) came in though, wasn't it? It

19 didn't add any appeals. Not only sentence but I mean

20 the fact that the criminal appeal has nothing to lose.

21 (indiscernible) mid-'60s.

22 MR. MEITES: If you ratchet back, the
76

1 reason that people appeal is because they don't plead

2 guilty. The reason they don't plead guilty is because

3 of a number of factors. 1) they're over-charged

4 because the U.S. attorney controls the charging

5 decision. 2) the sentences are mandatory so that

6 there's no real discretion as the District Court can't

7 impose a sentence that the person would accept. 

8 So you get extremely high sentences that

9 the District Court can't alleviate leaving no choice

10 but to appeal. It's a Congressional choice whether to

11 keep the system going and one of the unfortunate

12 effects is it burdens the Courts of Appeal.

13 Presumably Congress thinks it's worth the cost. By

14 creating this Commission, perhaps there's a chance for

15 you all to tell Congress that there is a real cost --

16 COMMISSIONER: Congress has the view that

17 absence (indiscernible) There is a diversity of views

18 on the District Court. One judge will give a person

19 probation, another will give him 10 years, and absent

20 a process of enforcing sentencing guidelines through

21 appeal, you're going to get this very diverse

22 sentencing. That's the reason.
77

1 MR. MEITES: Well, this district, the

2 Northern District of Illinois, has a Sentencing

3 Council. Now, not everyone belonged and it wasn't

4 mandatory. But as I understand it, many judges would

5 get together and informally discuss sentencing,

6 sentencing practices. That didn't mean that the

7 outliers didn't exist. But if you focus on the

8 outliers -- I'm afraid Congress too often does focus

9 on the unfortunate exception -- then you're going to

10 create a whole system for one out of 10 or one out of

11 100, and that's what I think we have in the sentencing

12 problem.

13 We had a couple of judges who were

14 lenient, a couple who were severe. The other eight or

15 10 or 12 were kind of ordinary. Now they're all

16 severe because that's what the system says you have to

17 be. I don't know how you've gone from having two

18 judges who were too lenient to 12 or 20 judges that

19 now have to be very severe. It doesn't seem to be

20 proportionate to the problem. And if you could reel

21 that back and give discretion back to the District

22 Courts so that they could impose reasonable sentences,
78

1 people would plead guilty for reasonable sentences,

2 there would be less criminal appeals. But you've got

3 to put the Genie back in the bottle.

4 PROFESSOR MEADOR: Let me ask a question

5 on that point. Is your group concerned in any way or

6 concerned about the internal decisional precesses on

7 the Court of Appeals, that is to say the number of

8 cases that don't get oral argument but go through some

9 sort of fast track. Have you looked at that and do

10 you have a position on that?

11 MR. MEITES: We did. Our fourth

12 recommendation actually addresses that problem. The

13 7th Circuit does much less of that than some other

14 Circuits. In our testimony we commend the Court for

15 doing that. 

16 COMMISSIONER: More oral argument.

17 MR. MEITES: More oral argument. We get

18 oral argument in virtually all our cases. It's kind

19 of a mystery to us. If the judges here could do it,

20 they're no more more moral or less moral than the

21 judges in the rest country. Why can't it be done

22 elsewhere? We'll leave that to you because there are
79

1 vast disparities in oral argument practices among the

2 Circuits and I can't imagine why that's necessary

3 because if you look at appeals per judge, they are not

4 explained by the disparity of oral argument. There is

5 disparity but the 7th Circuit has an average to above

6 average case load, yet we handle oral argument.

7 What I'm concerned about is the other

8 side. What cases don't get full consideration? I

9 don't know but I know no one else knows either.

10 There is no systematic tracing of what kinds of cases

11 and who are the appellants in the cases that are

12 summarily disposed of. Just isn't. No one knows.

13 It's not reported in any of the statistics and I'm

14 concerned and the Council is concerned that in some

15 Circuits in some category of cases unconsciously --

16 COMMISSIONER: I don't really understand

17 that. Maybe we'd better be (indiscernible) In our

18 Circuit the judges of the Court of Appeals are invited

19 frequently to bar associations, to CLE programs,

20 etcetera, and ask questions about how the process

21 works and very specific questions about how the

22 process works and most (indiscernible) judges give
80

1 very polite answers to that and the lawyers who are

2 interested can find out precisely how in cases any

3 particular system works. I don't understand why you

4 can't do that.

5 MR. MEITES: Yes, we do understand the

6 mechanics. Both in this Circuit and I'm sure

7 elsewhere there's candor on how the cases are selected

8 for summary distribution. I think we understand that.

9 I'm making a different point. The point I'm making is

10 I don't know in any kind of systematic way what kind

11 of cases are selected out of the system. In the 7th

12 Circuit are 80 percent of the employment cases taken?

13 I don't know.

14 COMMISSIONER: What do you mean are

15 selected?

16 MR. MEITES: Well, cases that don't

17 receive oral argument. Cases that are decided per

18 (indiscernible) like are all Social Security appeals

19 disposed over 90 percent that way?

20 COMMISSIONER: Why don't you ask the

21 judges?

22 MR. MEITES: I don't think they know.
81

1 Unless there's some record keeping mechanism. In the

2 6th Circuit does someone count whether --

3 COMMISSIONER: I can tell you precisely

4 how it works in the 6th Circuit.

5 MR. MEITES: It's the other question.

6 Does the 6th Circuit know of all the cases that are

7 summarily disposed? 

8 COMMISSIONER: Summarily disposed

9 (indiscernible)

10 MR. MEITES: Correct. Is there any kind

11 of record keeping so you know that 90 percent are one

12 kind of cases or 80 percent are cases where --

13 COMMISSIONER: Yes. But in the 6th

14 Circuit we have oral argument in every case. We have

15 one lawyer (indiscernible) both sides submit the case

16 on briefs. Occasionally we say well, we want the case

17 argued anyway but not usually. 

18 MR. MEITES: Our concern is perhaps the

19 other Circuits where less than half the cases appear

20 to have oral argument. 

21 Well, thank you very much for a chance to

22 address the Commission.
82

1 COMMISSIONER: All right. Thank you so

2 much.

3 The next witness here is Peter Jon Simpson

4 on behalf of the Christian Legal Education Association

5 & Research.

6 MR. SIMPSON: Good morning. Welcome to

7 Chicago. I am Peter Jon Simpson, an American with

8 firsthand knowledge of the federal judiciary today. 

9 Restructuring the Appellate Courts in the

10 United States involves three questions. #1, what does

11 a non-lawyer litigant in America have to do to get his

12 case read by a judge who understands laws and a

13 Constitutional question placed before him? 2, what

14 does a non-lawyer litigant in America have to do to

15 get his appeal placed before a panel of judges who

16 will: A) read it and B) understand the law and the

17 Constitutional question or questions placed before

18 them? Lastly, what do Americans have to do to

19 experience good old-fashioned legal performance.

20 History notes in 1066 William the

21 Conqueror landed in England, burned his ships behind

22 him and lost half of his army in the first battle. He
83

1 conquered England anyway. Why? Because as the

2 retreating English king sent for the people to come to

3 the defense of the king and the father land, the

4 people refused his call. Why? They ignored the

5 invasion of their own country because corrupt federal

6 judges of their day had reduced them to slaves on the

7 land. 

8 There were two sets of rules, one for the

9 king's cronies, another for the people. The people,

10 facing a legal system that worked solely for the

11 benefit of the privileged elite, stood by as the

12 invaders marched. Do you know why many today would

13 not lift a finger if an enemy came to these shores and

14 threatened you members of this panel, your cronies,

15 and the silk stocking lawyers and judges that sit

16 behind me in this room? Do you know why many would

17 pray for the success of the invaders? Do you know why

18 many disenfranchised Americans would actually help the

19 invaders hoping for a better deal from our enemy than

20 the deal they've received from the corrupt and

21 reprehensible reprobates who parade as federal judges

22 today?
84

1 COMMISSIONER: How long is your

2 statement?

3 MR. SIMPSON: I'll be not much longer,

4 sir. 

5 COMMISSIONER: Could you suggest what

6 might be done about the situation?

7 MR. SIMPSON: As you will shortly see,

8 sir. In the legislative history of Judicial

9 Improvements Act of 1990, Senator Joseph Beyden

10 (phonetic sp.) remarked, quote, "The courthouse door

11 is closed to the American people." Believe me, it is

12 now permanently welded shut. I am the living

13 embodiment of that. Can any of you explain why today

14 non-lawyers like me who study and raise Constitutional

15 questions in federal courts are laughed at, ignored or

16 worse? 

17 Gilgor (phonetic sp.) wrote in Judicial

18 Tyranny, quote, "Tyranny can not come to America until

19 judges become intellectually dishonest." End quote.

20 In 1991 my daughter was removed from my home at

21 gunpoint without any court process whatsoever as

22 required by state law. She was then assaulted and
85

1 sexually molested by government bureaucrats and their

2 agents. Ignoring the direct warning of the United

3 States Supreme Court, I entered the judicial meat

4 grinder in America and foolishly appealed to justice

5 by filing a federal civil rights lawsuit. This action

6 was summarily dismissed after 58 docket entries in 60

7 days. I have waited over seven years for my

8 Constitutionally guaranteed day in court. I am still

9 waiting.

10 Can any of you explain to me how I get my

11 $120 filing fee back? I paid for trial by impartial

12 jury, not summary dismissal. I drew Federal Judge

13 Scott Allright (phonetic sp.) known in Missouri as

14 Scott Allwrong, the District's Chief Judge. He has

15 risen to his level of incompetence. Scott Allwrong is

16 as intellectually dishonest as the worst of despots.

17 Can any of you learned judges explain to me why Judge

18 Wrong has done absolutely everything in his power to

19 prevent me from bringing those who molested my

20 daughter to trial? Absolutely everything. 

21 Can any of you learned judges explain to

22 me why the federal prosecutors laugh in my face when
86

1 I ask for a grand jury investigation of the crimes

2 visited on my then innocent three year old daughter?

3 And please save your suggestions about hiring a

4 lawyer. For someone who knows less than I do about

5 our caste system, legal system. Can any of your

6 learned judges explain to me why no lawyer, not one,

7 would lift a finger to help me? They all told my

8 father as he waved his checkbook in their face, We

9 wouldn't touch this case with a 10' pole. 

10 Judge Rymer, can you explain to me how I

11 get my daughter's innocence back? Can you tell me,

12 please, how I can stop the nightmares from waking her?

13 Can you tell me how I can make her not flinch whenever

14 she sees a cop? 

15 My first go at the 8th Circuit Court of

16 Appeals won a summary reversal. Since then, the 8th

17 Circuit's judges have gone out of their way to deny me

18 relief unless and until I surrender my daughter to the

19 very bureaucrats who assaulted and molested her in

20 1991. Can any of you learned judges explain this to

21 me? This panel has already learned first hand in lie

22 (phonetic sp.) that in the 11th Circuit's Court of
87

1 Appeals no pro se petition ever reaches a judge's

2 desk. The opinions are decided and written by clerks

3 or staff lawyers. 

4 From my experience, the same is true in

5 every Appellate Circuits. Can any of you learned

6 judges explain to me why? Is this what we the people

7 pay federal judges over $100,000 a year plus perks to

8 do? Is this what passes for intellectual honesty in

9 the federal Appellate Courts these days? Can any of

10 you judges explain this to me? 

11 An eyewitness to this Commission's Atlanta

12 March 23rd hearing wrote me, quote. "Pete, you did a

13 fine job during the Commission hearing. I sat in the

14 back and observed senior Judge Hatchet (phonetic sp.)

15 who sat in the back midsection. He started freaking

16 out, looking at the U.S. Marshall, not once or twice

17 but six times. When Peggy mentioned the thousands of

18 732 complaints for judicial misconduct that had been

19 filed, he got up and left and called in extra U.S.

20 Marshals. I joke not. By the time the extra Marshals

21 had arrived, the meeting had adjourned. The wicked

22 flee when none pursue. The righteous are bold as
88

1 lambs." 

2 Can any of you learned judges explain to

3 me why this distinguished panel does not possess the

4 integrity to place a true and exact copy of Peggy

5 David's (phonetic sp.) complete remarks from that

6 hearing on its website? Will my remarks to you today

7 appear on your website? Is this panel aware of the

8 revelations regarding seven United States Supreme

9 Court Justices receiving expensive trips and cash

10 honoraria from West Publishing Company while West

11 litigated in actions before that Supreme Court? I

12 have seen nothing from N. Lee Cooper, Esquire and his

13 private country club American Bar Association about

14 such conduct. Conduct that would make the most

15 depraved South American dictator blush.

16 Judge Rymer, can you explain this to me?

17 Is Mr. Cooper too busy? The Minneapolis Star Tribune

18 and American Spectator Magazine had the integrity at

19 the time to publish the facts. Did Mr. Cooper miss

20 those reports because they're so hard to read through

21 the cigar smoke in the back rooms where most cases are

22 decided and the fix is arranged?
89

1 JUDGE MERRITT: Mr. Simpson, you're

2 reading your statement that you have submitted to us

3 and you're now about halfway through.

4 MR. SIMPSON: Sir, no. Sir, you allowed--

5 JUDGE MERRITT: Do you want to read the

6 whole statement to us?

7 MR. SIMPSON: Well, I would certainly like

8 to read the next section which speaks directly on the

9 federal Courts of Appeal and how they operate.

10 JUDGE MERRITT: If you would --

11 MR. SIMPSON: I notice, sir, that you --

12 JUDGE MERRITT: -- We have this statement

13 and it'll be made a part of the record. If you would

14 like for it to be on the website, I'm sure we can put

15 it on the website. But we have it here before us, so

16 why don't you --

17 MR. SIMPSON: Mr. Merritt --

18 JUDGE MERRITT: -- summarize whatever it

19 is that --

20 MR. SIMPSON: Mr. Merritt, you allowed

21 licensed members of the bar extra time. Will you deny

22 we the people --
90

1 JUDGE MERRITT: I'm going to hold you to

2 your time allotted.

3 PROFESSOR MEADOR: Mr. Simpson, I had

4 understood when we got the request, when you put in a

5 request to appear, that you requested three minutes.

6 Is that correct?

7 MR. SIMPSON: Yes, sir. And I apologize

8 for running long.

9 PROFESSOR MEADOR: We scheduled the

10 morning based on that assumption. I can understand

11 why you want to take more than three minutes but --

12 MR. SIMPSON: Well then, may I be allowed

13 just two or three more and I will take my leave of

14 you.

15 JUDGE MERRITT: Why don't we conclude with

16 whatever you have to tell us at five minutes until 11.

17 That will give you four or five more minutes.

18 MR. SIMPSON: I will count on you, sir, to

19 keep the time. 

20 Here's what we face in the Appellate

21 Courts today. The 8th Circuit Judge is Richard

22 Arnold. He sits on that panel alongside his brother
91

1 Morris Arnold in willful and premeditated violation of

2 the very oath they both swore to uphold. The anti3 nepotism statute at 28 United States Code 458. The

4 8th Circuit Court of Appeals lies to Congress, they

5 falsify the number of complaints filed against these

6 corrupt judges, and they respond that this is a

7 problem for the legislature. 

8 In our caste system legal system, like in

9 England's in 1066, there are two sets of rules. One

10 set of rules for me and another set of rules for the

11 privileged elite like Richard and Morris Arnold and

12 the lawyers and judges crowded into this hearing room

13 this morning. Can any of you explain to me why our

14 magnificent system of constitutional government has

15 degenerated into the nightmare that I have lived for

16 the last seven years? Can you tell me the last time

17 a federal judge was impeached for trampling the rights

18 of an American? 

19 Let me repeat this for clarity and

20 emphasis. Richard and Morris Arnold sit in willful

21 premeditated violation of the very law they swore to

22 uphold. Of course, regular folks like me know that
92

1 the 745 federal judges in America can't be bothered

2 with petty annoyances like having to obey statutes

3 passed by Congress. Those are for peasants like me

4 and my family and millions of other Americans, not the

5 modern Mandrin ruling elite like the Arnolds and their

6 privileged friends.

7 Do you wonder why lawyers and judges are

8 held in such contempt and derision by the American

9 people today? Do you really ponder why respect for

10 the law and for the judges who are to impartially

11 administer that law has vanished with nary a trace?

12 May I brazenly suggest to you that you might consider

13 waking up and smelling the coffee. If you recall,

14 violation of the judge's oath of office is grounds for

15 impeachment. Hide and Hatch have been told by

16 hundreds and hundreds and hundreds of Americans of the

17 situation regarding the Arnold Brothers in St. Louis

18 at the 8th Circus. They laugh in our faces or worse.

19 Now I want you to understand that I

20 believe Richard Arnold and his brother belong on the

21 bench. They belong on the bench awaiting their turn

22 to use the telephone in the maximum security wing of
93

1 the federal penitentiary at Marion, Illinois where

2 they ought to be for suborning perjury, fraud and

3 obstruction of justice. You see, after 23 hours in

4 lock down, you only get one hour out to use the phone

5 and you have to wait your turn on the bench.

6 Of course, we all know if the Arnold

7 Brothers fraud is exposed and they're removed, they'll

8 keep their fat pensions and their freedoms, remaining

9 members in good standing of the American Bar

10 Association. If Mr. Cooper was here, perhaps he could

11 explain to us how the corrupt do always seem to find

12 a way to protect their own. When we are powerless to

13 rectify situations like this, we create jokes. You

14 know what you call a lawyer with an I.Q. of 61?

15 Federal judge. You know what you call a lawyer with

16 an I.Q. of 41? Federal Appellate Court Judge.

17 The federal judge's oath of office at 28

18 United States Code 453A comes to us from ancient

19 precedence. It is found in the sacred thet at

20 Deuteronomy 1, 16, 17 and Leviticus 19, 15. And

21 Congress in 1983 codified our national need to study

22 and apply the teachings of the Holy Scriptures in our
94

1 everyday life. Today in the hands of judges like Ron

2 and the Arnold Brothers, the judicial oath is a cruel

3 joke made on the very people whose taxes pay the six

4 figure salaries of these politically connected

5 ambulance chasers. Can any of you justify this to me?

6 Sheriffs having eyes to see --

7 COMMISSIONER: It's five minutes 'til.

8 Your time is up and the court will stand in recess

9 temporarily. Thank you.

10 [END TAPE 1, SIDE B; BEGIN TAPE 2, SIDE A]

11 COMMISSIONER: ...couple of apologies

12 (indiscernible)

13 COMMISSIONER: Mr. William Richmam,

14 Professor of Law, University of Toledo and currently

15 a visiting professor at the University of Michigan Law

16 School. We're happy to have you here.

17 PROFESSOR RICHMAN: Thank you for inviting

18 me. It's a great honor. It's also sort of a little

19 bit of a reunion. I know most or many of you by

20 telephone, but having met personally, this is a

21 probably lonely scholarly field that we labor in here.

22 Relatively few are interested in the workings of
95

1 federal appellate courts.

2 I wanted to start out with an apology for

3 my remarks being a tad incendiary perhaps. I gather

4 now that that's not for me to -- since the ground is

5 already burned over. I'll start also with a family

6 story. I have a 21 year old daughter and a 15 year

7 old son and my wife and I play with them a game of

8 what was it like when you were young? And it's very

9 difficult for children to place their parents

10 chronologically. They know that you aren't dinosaur

11 friends and associates but they do sometimes ask crazy

12 questions. They did when they were young about

13 whether there were airplanes and whether there were

14 automobiles when we were young. 

15 So what we did was we finally began

16 telling them what some things were like when we were

17 young. There were no VCRs, for instance. We had

18 three channels on the television. The phones had

19 dials on them and then we tell the crunch line. We

20 tell them when we were kids sometimes a kid would want

21 something and not get it. That blows them away. 

22 If I were to have the same discussion with
96

1 my professional children, my students, and they asked

2 me what things were like when I was young, I would be

3 able to say that when I first entered the profession

4 and I'm not feeling very old but within my

5 professional life time amazing change has occurred in

6 the United States Courts of Appeals. For the first 70

7 years of their existence, they operated as common law

8 courts have operated for generations, accountably,

9 personally, they heard oral arguments in nearly every

10 case, issued a reason, published precedential opinion

11 in nearly every case and basically did their own work.

12 They had for most of that tradition no or one law

13 clerk. 

14 Today, this is the traditional model in

15 the article. We learn it the learning hand (phonetic

16 sp.) model. Today, that routine no longer exists. We

17 now have a set of appellate expediting mechanisms

18 including limited oral arguments, unpublished

19 opinions, unprecedential opinions, and a cadre of

20 parajudicial personnel including law clerks who've

21 trebled in the last what, 30, 35 years and central

22 staff that now outnumber judges in many circuits.
97

1 Today, fewer than half of the Circuit

2 Courts hear our oral argument in at least half of the

3 cases they decide. Published precedential

4 terminations account for less than a third of merits

5 terminations. Some who have investigated this believe

6 that the Circuit Courts have turned themselves into de

7 facto (indiscernible) courts if you compare a non8 argued, minimally conferenced or wholesale conference

9 where 40, 50, 60 cases are discussed at a time. If

10 you will compare a case where there's no argument, a

11 wholesale conference, no written opinion besides a

12 firm see local Rule 21 or a one sentence affirmance

13 that is unprecedential and unpublished. If you

14 compare that to a Supreme Court denial of certiorari

15 (phonetic sp.) they're functionally equivalent. The

16 United States code of course says that the Circuit

17 Judges must give an appeal in writing, decide every

18 case on the merits but if you wash that in the cynical

19 acid of the realist, what you come up with is a

20 process that looks very much like a denial of

21 certiorari. This is what we call the new certiorari.

22 There are additional results of the last
98

1 30 years worth of appellate reforms. The quality of

2 the Court's work has diminished. This is most obvious

3 with opinions. My partner, Bill Reynolds, and I did

4 a survey 15 years ago in The University of Chicago Law

5 Review where we looked at about 1,000 published

6 opinions and a very disappointing number failed to

7 meet the most minimal standard of could you tell from

8 the opinion what happened in the case and why the

9 Court decided the way it did? That was a standard

10 that we thought could have been met easily by 150

11 words of opinion. Many, many failed that test.

12 The diminished quality is also apparent in

13 the appearance of justice. A litigant who gets no

14 oral argument, not merely pro se litigants but

15 represented litigants who get no oral argument, knows

16 that there is a huge active central staff. That's the

17 very little assurance that the judges have decided her

18 case rather than the staff.

19 Further, the impact is disparate by class.

20 COMMISSIONER: You are a lawyer

21 (indiscernible) oral argument is provided to any

22 lawyer who wants oral argument. I think that may be
99

1 true in the 7th Circuit. It's certainly true in the

2 2nd.

3 PROFESSOR RICHMAN: Yes.

4 COMMISSIONER: It's certainly true in the

5 6th.

6 PROFESSOR RICHMAN: Actually, I wasn't

7 aware of it in the 7th until today -- or maybe it was

8 the 6th.

9 COMMISSIONER: They have oral argument and

10 there are no -- except sometimes you get a bench

11 decision in the 6th Circuit. There are no one line

12 (indiscernible) But I grant you that that does vary

13 from circuit to circuit. I don't personally approve

14 of that way of doing business, so there's a great of

15 variation among the circuits as to how oral argument

16 is handled and how the opinions are handled. Of

17 course, there is a variation with respect to

18 publication. When you say that something is

19 unpublished, it doesn't mean that it's inaccessible.

20 It simply means that it is not in the (indiscernible)

21 books. It is in the case in most courts, many courts,

22 on the electronic system. So I don't think you are
100

1 describing accurately the entire appellate system.

2 PROFESSOR RICHMAN: You're certainly

3 correct. I'm not. I'm describing it in gross and I

4 learned today that the 6th Circuit -- I really should

5 know better because that's my home base -- provides

6 oral argument to any lawyer who requests it. These

7 statistics basically come from a study of the

8 (indiscernible) 4th of the --

9 JUDGE BROWNING: It's hard to get the real

10 situation just from the statistics. One of the things

11 that has changed from the traditional model that I'm

12 sure you're aware of is that the character of the case

13 load over the period you're talking about -- let us

14 say 40 years --

15 PROFESSOR RICHMAN: I would place 1970 as

16 the beginning.

17 JUDGE BROWNING: -- has -- well, it really

18 starts before but --

19 PROFESSOR RICHMAN: Judge Browning --

20 JUDGE BROWNING: -- case loads from 1960

21 or '62 or '65 to the present that have increased

22 across the Courts of Appeal 12 to 15 fold and the
101

1 aftermath of the pro se -- the last speaker is a good

2 example of the type of pro se litigation that is

3 occurring. It did not exist very often according to

4 your traditional model.

5 PROFESSOR RICHMAN: Can I have a word?

6 JUDGE BROWNING: Taking that into

7 account--

8 PROFESSOR RICHMAN: Can any of the learned

9 judges explain why it was that he was scheduled

10 directly before me?

11 JUDGE BROWNING: I can't. 

12 PROFESSOR MEADOR: May I ask you a

13 question? You speak of the certiorari, the new

14 certiorari. Now, what you're saying in effect I guess

15 is that what has happened in most of the Courts of

16 Appeals is that suddenly and without announcing it as

17 such they moved into essentially discretionary

18 reviews.

19 PROFESSOR RICHMAN: Exactly.

20 PROFESSOR MEADOR: Now I can agree with

21 that. However, let me throw this out and see what you

22 say. It seems to me it is a discretionary review of
102

1 a different type from the discretionary review in the

2 U.S. Supreme Court. It is more like the discretionary

3 review you find in Virginia Appellate Courts and the

4 Code of Military Appeal which is a discretionary

5 review but it is a validly and realistically

6 (indiscernible) whereas the U.S. Supreme Court is not,

7 taking into account the importance of the question,

8 whether the timing is right, etcetera, etcetera, a lot

9 more attractive whereas this kind of discretionary

10 review you find so (indiscernible) present day Courts

11 of Appeals does involve a look at the (indiscernible)

12 and when the one liner (phonetic sp.) says a thing,

13 that means that in the view of those judges, there is

14 nothing calling for a question on the merits. Would

15 you agree or not agree with that analysis?

16 PROFESSOR RICHMAN: Oh, I certainly agree.

17 I used the Certiorari as a metaphor. I don't intend

18 it to be literally correct. It is a metaphor for a

19 changing way that the Circuit Courts have operated in

20 the last 30 years. 

21 JUDGE RYMER: May I ask you a question?

22 If I reviewed the bottom line of your written comments
103

1 correctly, it is that there's no problem adding judges

2 and that's what we should do. I'm not expressing an

3 opinion on that. My question is if more judges are

4 added, some structural change is at some point in time

5 going to have to happen. We can't just simply keep

6 adding bodies.

7 PROFESSOR RICHMAN: That's right.

8 Although I would say that adding bodies is better--

9 adding bodies without structural reform is better than

10 what we do today.

11 JUDGE RYMER: Well, what if you added two

12 or three hundred judges per Circuit?

13 PROFESSOR RICHMAN: Better than what we do

14 today but still -- but nowhere near as good as it

15 could be.

16 JUDGE RYMER: So you wouldn't have a two

17 or three hundred judge in bang (phonetic sp.)?

18 PROFESSOR RICHMAN: We might do away with

19 in bangs. I don't know.

20 JUDGE RYMER: That's what I'm talking

21 about. All right. So you say okay, just keep adding

22 judges to --
104

1 PROFESSOR RICHMAN: But you're right. The

2 structural reform is a better idea --

3 JUDGE RYMER: Well, all right.

4 PROFESSOR RICHMAN: -- than purely adding

5 judges. Yes.

6 JUDGE RYMER: Okay. Do you have any

7 suggestions with respect to structural?

8 PROFESSOR RICHMAN: Well, Judith McKenna

9 (phonetic sp.), who is your staff person today -- is

10 that a name for you? (indiscernible) -- has a very

11 fine monograph (phonetic sp.) on possibilities for

12 structural reform.

13 JUDGE RYMER: Yes, I know that. But

14 that's more or less what we're here for.

15 PROFESSOR RICHMAN: I think inevitably

16 you're going to end up with another tier, either

17 between the Circuit Courts and the Supreme Court or

18 between the District Courts and the Circuit Courts.

19 There must be some device to make sure that judges

20 hear all appeals and that all appeals have

21 precedential value or have precedential effect.

22 PROFESSOR RICHMAN: What is your view of
105

1 the possibility of an Appellate function by District

2 Courts or District Judges, more accurately, patterned

3 in a way after the 9th Circuit's BAP (phonetic sp.)?

4 PROFESSOR RICHMAN: I don't have a problem

5 with it provided that the capacity is large enough.

6 We today have 179 Circuit Judges and, based on the AOs

7 and the Judicial Conference's staffing models, we need

8 100 more or at least we did in 1996 when I did this

9 research. It may be now that we need 120 more. I

10 haven't kept pace. But if we can get that additional

11 capacity to hear those appeals in a way other than by

12 a truncated (phonetic sp.) solution, by using the

13 District Courts, that's fine. 

14 PROFESSOR MEADOR: Your position is the

15 system needs more judge power.

16 PROFESSOR RICHMAN: Yes.

17 PROFESSOR MEADOR: And you're not

18 particularly hung up one way or another on how that's

19 structured. Is that what you're saying?

20 PROFESSOR RICHMAN: I may have some

21 personal views one way or the other but I think the

22 force of this argument is that there's insufficient
106

1 capacity and the result is that litigants, lawyers and

2 the judges themselves get short changed. It is quite

3 clear the judges are working very hard. Working as

4 hard as they are, they just can't handle the case load

5 with the traditional appellate process. The nouveau

6 process is not the same. It's not as good. It

7 forfeits what made the federal appellate courts great

8 which is that they did their own work in every case.

9 And I think that additional capacity at

10 the District Court or between the District Court and

11 the Court of Appeals would be fine. I caution against

12 any sort of division between fact appeals and law

13 appeals because I don't think one can establish --

14 COMMISSIONER: Let me say that the

15 traditional model, I question whether the traditional

16 model that you describe is in fact traditionally

17 modeled. The traditional model surely was the

18 Marshall Court. I mean by that Chief Justice

19 Marshall.

20 PROFESSOR RICHMAN: I was thinking of the

21 1890 efforts as traditional model.

22 COMMISSIONER: But I would think that that
107

1 was a model as seen by lawyers as one that produced

2 good opinions and Chief Justice Marshall

3 (indiscernible) I mean in terms of judges doing their

4 own work and they delegated it to Chief Justice

5 Marshall to work and he was a quick and good lawyer

6 and the Chief Justice and I have never heard it

7 criticized that the court would have been better off

8 had more judges on the Marshall Court writing

9 opinions. And so --

10 PROFESSOR RICHMAN: You're not going to

11 ask me to distinguish between Chief Justice Marshall

12 and the 30 or 40 staffers (indiscernible)

13 COMMISSIONER: It's not -- all I'm saying

14 is that traditional models, it is thought that each

15 judge did the work in each case. That is not

16 accurate.

17 PROFESSOR RICHMAN: No, I simply mean that

18 the court's judges did the court's judges' work. The

19 judicial --

20 COMMISSIONER: You're basically

21 complaining that there's too much bureaucracy.

22 PROFESSOR RICHMAN: Too much bureaucracy,
108

1 too much improper delegation, delegation of purely

2 judicial functions to nonjudicial officials.

3 COMMISSIONER: How would you handle a

4 situation where more or less half the case load

5 consists now of pro se cases, that is pro se

6 plaintiffs, sometimes pro se defendants.

7 PROFESSOR RICHMAN: I (indiscernible) with

8 three judge panels of Circuit Judges unless there was

9 some other form of (indiscernible)

10 COMMISSIONER: Would you hear oral

11 argument?

12 PROFESSOR RICHMAN: I would. Yes. I

13 think there's much to be gained from it. I guess with

14 incarcerated appellants you've got a little bit of a

15 problem.

16 COMMISSIONER: Yes.

17 PROFESSOR RICHMAN: But I've long favored

18 taking the --

19 COMMISSIONER: Those pro se cases were not

20 a part of the traditional model.

21 PROFESSOR RICHMAN: Right. Well, there

22 were. I mean there were always pro se litigants.
109

1 COMMISSIONER: But they were few and far

2 between.

3 PROFESSOR RICHMAN: Right.

4 COMMISSIONER: You would hear oral

5 argument.

6 PROFESSOR RICHMAN: A little less vehement

7 also.

8 COMMISSIONER: You would have oral

9 argument without appointment of counsel for a pro se

10 litigant. Is that right?

11 PROFESSOR RICHMAN: I would. Yes. I

12 don't think it wastes much time. To my mind, the

13 display function, the face to face meeting between the

14 disgruntled litigant and the bench, has a declaratory

15 function, a jurmatic (phonetic sp.) function, even if

16 there's nothing to the appeal. We announce that we

17 have justice for all and we don't show it. I mean it

18 may exist, but we don't show it.

19 COMMISSIONER: And you would add judges in

20 order to do that?

21 PROFESSOR RICHMAN: I would. Yes. And I

22 would add enough at least to meet the appellate
110

1 staffing models. 

2 I wanted to talk for a minute about a

3 whole range of arguments that I call the judicial

4 establishment. That's a lame term. I guess what I

5 mean by that is the judicial conferences calling for

6 moderate growth, the conferences of several circuits

7 asking not to be increase wholesale and two judges,

8 Judge Newman and Judge Tjoflat in particular who write

9 vehemently against expansion. I call that the

10 judicial establishment. It's fairly lame. Obviously

11 there are bunches of Circuit judges who have argued

12 strongly for expansion. Judge Rhinehart and a judge

13 in the 5th Circuit whose name right now wants to get

14 away from me. Carolyn Deneen King. So it's a lame

15 term but it's the best I could come up with.

16 COMMISSIONER: Judge Arnold

17 (indiscernible) add judges. But there are a number of

18 judges who -- and we have added judges.

19 PROFESSOR RICHMAN: Right. Right, but

20 we've added them in dribs and drabs. We need, by our

21 own staffing models, another 100 at least.

22 COMMISSIONER: We have three times as many
111

1 judges now, three times as many as (indiscernible)

2 PROFESSOR RICHMAN: Right. In 1960 there

3 were I think 65, 68. Now there are 179. Something

4 like that. 

5 I will go through these arguments with you

6 if you want. 

7 COMMISSIONER: Let me ask you about an

8 alternative. Most of the increase comes from

9 increased federal jurisdictions of one kind or

10 another, some by Congress, some by courts, and then by

11 (indiscernible) the ostensibly enhanced federal

12 jurisdiction. What about the possibility of using

13 state courts in those (indiscernible)?

14 PROFESSOR RICHMAN: I have no problem with

15 it as a societal solution.

16 COMMISSIONER: Working out (indiscernible)

17 PROFESSOR RICHMAN: I have no problem with

18 it as a societal solution, but I would be extremely

19 disappointed if your Commission made that a major

20 suggestion because it's a dodge. You can not

21 implement that. The Congress --

22 COMMISSIONER: The Congress would not.
112

1 PROFESSOR RICHMAN: The Congress won't do

2 it. When the Congress decides that battered women

3 need federal protection or that some other group or

4 some other traditionally state law handled issue needs

5 to be federalized, the pressures which move Congress

6 towards federalization are not going to be resisted by

7 the federal judiciary. There's no constituency --

8 COMMISSIONER: I wasn't talking about --

9 you take my question to mean that we should ask

10 Congress to reduce jurisdiction. That is repeal --

11 PROFESSOR RICHMAN: Or stop increasing it.

12 COMMISSIONER: Repeal federal

13 (indiscernible) statutes.

14 PROFESSOR RICHMAN: Right.

15 COMMISSIONER: What about the possibility

16 of 1) in diversity cases, making diversity cases much

17 more discretionary with some criteria?

18 PROFESSOR RICHMAN: I have no grief with

19 diversity jurisdiction one way or the other.

20 COMMISSIONER: That's for example.

21 PROFESSOR RICHMAN: It's 25 percent of the

22 District Court load and 10 percent of the Court of
113

1 Appeals load. It's not going to help you much.

2 COMMISSIONER: It is much of the federal

3 Court of Appeals load of --

4 PROFESSOR RICHMAN: (indiscernible) cases.

5 COMMISSIONER: -- non-pro se --

6 PROFESSOR RICHMAN: Right. 

7 COMMISSIONER: -- argued cases where the

8 major time taken up is much larger.

9 PROFESSOR RICHMAN: Right. I guess my

10 thought on that is you can nibble at the edges of this

11 problem with jurisdictional reforms, but Congress is

12 not going to do anything major.

13 COMMISSIONER: You think that they

14 wouldn't open up some discretion, that that's -- what

15 about the possibility of a kind of reverse removal

16 type of assignment of jurisdiction to state courts,

17 not federal courts?

18 PROFESSOR RICHMAN: I think it's --

19 COMMISSIONER: Judge Newman and some other

20 judges have argued for more discretionary diversity

21 cases as well as mechanisms to reassign --

22 PROFESSOR RICHMAN: Let's look at the
114

1 history of very, very moderate jurisdictional reform

2 requests coming out of the federal judiciary. The

3 Federal Court Study Committee made a number of them.

4 One or two were implemented. Most never even were

5 introduced.

6 PROFESSOR MEADOR: (indiscernible) a

7 prudential answer.

8 PROFESSOR RICHMAN: Exactly. It's not

9 going to happen. It is purely prudential. Whether

10 it's wise or not, I mean we could argue about that but

11 I don't think it's important to argue about it because

12 it's not going to happen. Sadly for us but the

13 political realities are otherwise. 

14 I really have a very brief, simple message

15 which is we need more capacity. If we added between

16 the District Courts and the Circuit Courts, I can live

17 with that. If we add between the Circuit Courts and

18 the Supreme court, I can live with that. I think

19 that's much less popular, certainly among the

20 judiciary. This article is primarily designed to deal

21 with a set of arguments that have been propounded

22 against radical expansion and to some extent it seems
115

1 to me to be killing a gnat with a 16 inch gun. Taking

2 those arguments seriously. Many of them are not very

3 meritorious. Many of them really warrant no very

4 serious treatment. 

5 We did it because we wanted to remove all

6 the window dressing and get down to what is there by

7 way of principled opposition to a larger appellate

8 bench? We found that if you remove all concerns about

9 collegiality, status --

10 COMMISSIONER: You (indiscernible)

11 collegiality only as status quo.

12 PROFESSOR RICHMAN: No, no, no, no.

13 They're two different problems. But distressingly, if

14 you read the defenses of a small federal bench, these

15 themes come up over and over again. I mean I'm not

16 attributing this without having seen it in the

17 writings of Judge Newman, Justice Scalia (phonetic

18 sp.), Judge Tjoflat. Fine judges. But I simply deal

19 with what they have written for publication. These

20 themes appear. 

21 The quality candidates rationale is

22 hopeless. There are 800 state appellate court judges
116

1 and 645 district judges, 5,000 law professors. Surely

2 we can find 100 good circuit judges from among that

3 bunch. It would cost $80 million. Well, wool and

4 mohair supports cost $180 million. Forty universities

5 get more than $70 million. It's not a serious

6 argument.

7 The unstable (indiscernible) is the one

8 that the defenders, where they got the opposition to

9 expansion betting on the most and first, there's

10 simply no evidence for it beyond the anecdotal. All

11 of the systematic studies, all of the systematic

12 opinion research polls, particularly circuit judges

13 and district judges, indicates that there really

14 simply isn't a problem.

15 COMMISSIONER: I think the law is just as

16 stable with 100 judges (indiscernible) the law as

17 would three judges.

18 PROFESSOR RICHMAN: We don't know but we

19 know that there's no evidence --

20 COMMISSIONER: Doesn't appeal to common

21 sense.

22 PROFESSOR RICHMAN: Doesn't appeal to
117

1 common sense. But I mean one of the things I learned

2 when I first started doing empirical research is that

3 there's a real good reason for disparaging argument

4 from anecdote and common sense when there are numbers

5 and studies around and that is that many times when

6 you eyeball the numbers and then when you study the

7 numbers and perform the manipulations, you don't get

8 the same results.

9 The other point you make which I think is

10 a very good one is where is (indiscernible) Is there

11 going to be a difference between three judges and

12 2,000 judges? But the difference may come in between

13 1,500 and 2,000 or it may come in between 500 --

14 COMMISSIONER: We're never going to know

15 the answer to those problems.

16 PROFESSOR RICHMAN: Exactly. So it's a

17 problem of burden of proof and it seems to me that the

18 burden belongs on the anti-expansionists because they

19 want us to give up the known value of the traditional

20 federal appellate model in return for unknown gains in

21 consistency. 

22 PROFESSOR MEADOR: Your argument for
118

1 adding judges I take it rests on the -- compared to

2 those who want it, we have testimony from judges on

3 specific courts saying no, we don't need more judges

4 on this court, that court. So the disagreement I

5 think has to do with an underlying premise about the

6 value or validity of the current process. Given the

7 current process going on in certain appellate courts,

8 (indiscernible) they don't need more judges. So what

9 you're saying is that process is flawed.

10 PROFESSOR RICHMAN: Exactly.

11 PROFESSOR MEADOR: If you're correct, we

12 do need more judges. Is that what you're saying?

13 PROFESSOR RICHMAN: Exactly. I think the

14 process is flawed regardless of whether identical

15 outcomes would occur in every case by the traditional

16 process and by the current process. It's flawed

17 because the Appellate Courts do not simply serve any

18 disposing function. They serve a disposing publicly

19 and confidence function.

20 COMMISSIONER: I suggest that you look, if

21 you're going to do empirical research, at specific

22 courts. The 1st Circuit maintains -- does most of the
119

1 things you want a court to do. The 2nd Circuit and

2 your own Circuit, the 6th Circuit maintains argument

3 in every case. There are no orders of affirmance.

4 There is a reasoned disposition of at least 500 to

5 1,000 words in every case, even though in which the

6 staff was involved. Obviously we are more reliable

7 than in times past. That is --

8 PROFESSOR RICHMAN: If you are, you

9 shouldn't be.

10 COMMISSIONER: Well, maybe in an ideal

11 world we shouldn't be but in --

12 PROFESSOR RICHMAN: But --

13 COMMISSIONER: -- we would have to add so

14 many judges to the court. Our court, you know, we've

15 got three or four law clerks for every judge so you're

16 talking about --

17 PROFESSOR RICHMAN: And how many staff

18 attorneys?

19 COMMISSIONER: About 20 something staff.

20 PROFESSOR RICHMAN: How can you defend

21 staff attorneys? I mean it strikes me --

22 COMMISSIONER: -- half the dockets pro se,
120

1 non-argued cases and you just heard the last gentleman

2 here. How much time are you going to spend with that

3 kind of argument?

4 PROFESSOR RICHMAN: The 10 minutes that it

5 takes. I mean I understand that's a bitter pill, but

6 I don't see any way of assuring the litigants and the

7 lawyers. In the 6th Circuit you say a lawyer can

8 always get oral arguments. That's not true in every

9 circuit. I take the challenge seriously. I have

10 another life. I'm also a conflictive laws scholar.

11 I write books and articles on choice of law and

12 jurisdiction. So maybe another generation of scholars

13 will come along. 

14 I want to report only that there is a way

15 to get to a much more traditional model for deciding

16 appeals and the way is simply an increase of about 80

17 percent in the size of the circuit bench or, if you

18 prefer, another tier between the District and the

19 Circuit or between the Circuit and the Supreme Court.

20 COMMISSIONER: If you're going to gather

21 up all the law clerks and you're going to hear the

22 arguments in all the pro se cases, then you're talking
121

1 about a lot more than 80 percent.

2 PROFESSOR RICHMAN: No. No. Two hundred

3 fifty five merits dispositions per year would be an

4 extra 100 judges. That's your model, not mine.

5 COMMISSIONER: Well, I can tell you that

6 in our court it wouldn't. You'd have to add a lot more

7 than that.

8 PROFESSOR RICHMAN: I guess then my answer

9 would be that the restrictions on who gets to appear

10 before the Court ought to have to do with who's rowdy,

11 who's not going to inform the court of anything,

12 rather than we don't have enough judges.

13 PROFESSOR MEADOR: Well, you said a moment

14 ago, I thought, that you would be satisfied to achieve

15 this added capacity by a review at the District level

16 which would mean adding district judges and get your

17 capacity built up that way rather than adding circuit

18 judges. Did I understand you correctly on that?

19 PROFESSOR RICHMAN: Certainly.

20 PROFESSOR MEADOR: So it wouldn't

21 necessarily be adding circuit judges. It might just

22 be added district judges.
122

1 PROFESSOR RICHMAN: More capacity however

2 you get to it. More appellate capacity.

3 COMMISSIONER: All right. What else do

4 you want to tell us?

5 PROFESSOR RICHMAN: Well, these other

6 arguments, I'm sure you're moderately familiar with

7 them. The unstable (phonetic sp.) law I believe is

8 the one that people rely on most. There is no

9 evidence for it. Even if it's true, it just shows us

10 that consistency and capacity are competing values,

11 not which one should prevail. And I think the

12 interchange we had a minute ago about burden of proof

13 is the most crucial one there. 

14 The new mechanisms. You're obviously

15 thinking about those right now. The one that you seem

16 to be -- Professor Meador has written mostly or --

17 COMMISSIONER: What is the evidence that

18 the law is more stable (indiscernible)

19 PROFESSOR RICHMAN: Oh, I don't think it

20 was.

21 COMMISSIONER: So I mean the law has

22 always been, in the United States at least, non-rigid
123

1 (indiscernible) non-rigid, expanding --

2 PROFESSOR RICHMAN: Oh, no. No, no. I'm

3 not arguing -- you've got me wrong. That's the anti4 expansionist argument is that expanding will make it

5 too unstable. I think that's nonsense. 

6 COMMISSIONER: It's always been

7 (indiscernible)

8 PROFESSOR RICHMAN: Of course. Andif you

9 want to go back to Jerome Frank, he believes that some

10 Freudian desire we have for a just father that leads

11 us to believe that we could ever hope for stability in

12 the law. My colleague at Theas, Louise Weinberg, says

13 to hope for certainty is kind of like a baby crying

14 because he can't touch the moon.

15 PROFESSOR MEADOR: What do you do with

16 (indiscernible) theory about a known bench and

17 (indiscernible) the ability of decisions through known

18 bench?

19 PROFESSOR RICHMAN: Well, you heard the

20 representative of the Chicago lawyers. I don't know

21 the name of their organization.

22 COMMISSIONER: Council of Chicago.
124

1 PROFESSOR RICHMAN: Council of Chicago

2 Lawyers who discounts it. I don't have a real strong

3 thought one way or the other about it. I think the

4 incentives for appeal and the lack of disincentives

5 for failure to appeal will control whether the folks

6 appeal, not whether there's a known bench. It may

7 have some effect. I can't say that it won't. But--

8 PROFESSOR MEADOR: It may (indiscernible)

9 PROFESSOR RICHMAN: I believe so and I

10 believe that even if it were true we'd still be stuck

11 with consistency and capacity, our competing goals.

12 Even if we could show that increased capacity means

13 more inconsistency, we still haven't shown that we

14 don't need increased capacity. We've just shown that

15 it's going to cost us some and until we can show that

16 consistency ought to be the only goal, then it seems

17 to me the prima facia case for capacity is

18 overwhelming.

19 COMMISSIONER: You don't think there are

20 any values in those smaller benches?

21 PROFESSOR RICHMAN: I do think there are

22 values in a smaller bench. There's additional
125

1 prestige, additional comfort, maybe additional

2 efficiency in deciding with people that you know well.

3 I just don't think that those values are commensurate

4 with failing to deal with in the traditional appellate

5 way 40 percent of the case load. And it's going to

6 get worse. It's going to get down to eight or 10

7 percent of the case load eventually. If we keep going

8 the way we are, there are going to be traditional full

9 oral arguments, written, published opinions, reasoned

10 published opinions in a small minority of cases. That

11 strikes me as just not what our federal courts want to

12 do.

13 PROFESSOR MEADOR: Thank you.

14 PROFESSOR RICHMAN: Thank you very much.

15 I enjoyed it.

16 JUDGE MERRITT: Our last witness is

17 Collins Fitzpatrick. He is the very able Circuit

18 Executive for the 7th Circuit. He helped plan our

19 trip here and we appreciate that very much, Collins.

20 MR. FITZPATRICK: Thank you. At long

21 last, I'll still welcome you to the 7th Circuit. I

22 don't have a great proposal. I just have a modest
126

1 proposal. And this reflects solely my own views but

2 for about a quarter of a century now I've been

3 reviewing all the briefs that come into the 7th

4 Circuit and I set the calendar for the Court. So I

5 have looked at a lot of briefs during that time. 

6 The proposal is for a four year experiment

7 in which appellant attorney's fees would be awarded to

8 the defendant appellee if the appeal is affirmed. The

9 experiment would include only cases whose sole basis

10 of jurisdiction is diversity citizenship under Section

11 1332 of Title 28 of the United States Code.

12 The proposal runs against two tenets of

13 American law. One is that everybody pays their own

14 attorney's fees and the other is that parties of

15 diverse citizenship should have access to the federal

16 court. But I really don't think it runs contrary to

17 those proposals because somebody with a plaintiff in

18 a case with diverse citizenship can still file, they

19 can still sue in federal court, and you only have to

20 pay the other person's appellate attorney's fees if

21 the plaintiff loses twice, once in the trial court,

22 once in the Court of Appeals.
127

1 The benefit is that it provides what I

2 think is a strong disincentive to a losing plaintiff

3 who might otherwise bring not a frivolous appeal but

4 an insubstantial one. I tend to bring it home by

5 picturing yourself at an all night poker game in a

6 legal jurisdiction, o course, where this can go on.

7 COMMISSIONER: You're saying if the

8 District Court judge has disaffirmed the appellant in

9 a diversity case would pay the costs which would also

10 include counsel.

11 MR. FITZPATRICK: Appellate counsel fees

12 only. The proposal I'm making goes only one way and

13 the reason it goes only against the plaintiff because

14 the plaintiff in effect has had two choices. They

15 chose to bring the suit in the first place. They

16 chose to bring it in the federal court. And then

17 after losing, they chose to bring it on appeal. You

18 know, if this worked --

19 COMMISSIONER: (indiscernible) cases are

20 brought (indiscernible) I would think. The defendant

21 loses--

22 MR. FITZPATRICK: Correct.
128

1 COMMISSIONER: -- and appeals. Now would

2 that --

3 MR. FITZPATRICK: I wouldn't take that

4 into consideration. In effect, the plaintiff has had

5 two opportunities to win their litigation and lost at

6 both trials. The defendant is dragged in. The

7 defendant doesn't want to be there the first time.

8 And so their only choice is to appeal the losing

9 decision in the District Court.

10 PROFESSOR MEADOR: Be even-handed. Why

11 wouldn't your proposal say that the party who invokes

12 federal jurisdiction bears the cost if that party

13 loses on appeal. That would cut both ways.

14 MR. FITZPATRICK: You could do it that

15 way, Professor Meador, but again, it doesn't meet my

16 -- what I'm trying to do is craft a fairly narrow

17 exception that's going to have an impact on appellate

18 case load without bringing up the opposition forces on

19 the diversity jurisdiction question. Here under my

20 proposal, the plaintiff has brought the defendant into

21 court, not just once but twice, and it doesn't matter

22 to me whether it's in the state court or in the
129

1 federal court for this equity purpose. It only

2 matters that they were brought in twice, once in the

3 trial court and once in the Court of Appeals, and the

4 plaintiff has lost in both courts.

5 Let me get back to the poker game. You're

6 playing poker, you've lost every hand there is. The

7 night's pretty late. You're getting weary. The guy

8 who's won everything says, I'll tell you what. How

9 much do you have left? You say $10. We'll cut the

10 (indiscernible) my winnings against your 10 bucks.

11 Well, you'd be a fool not to take that kind of a risk

12 and play one more hand, even though your luck has been

13 abysmal all night because the opportunity to win back

14 what you have lost is so great. 

15 And I suggest that's exactly what happens

16 in the appellate court. Parties have spent tens of

17 thousands of dollars for interrogatories, requests for

18 documents, depositions, hundreds of hours have been

19 spent on pre-trial motions, substantive motions as

20 well as hearings in the District Court and, even if

21 the case is decided on a motion to dismiss or for some

22 rejection and there is no trial, the total attorney's
130

1 fees and costs is astronomical. 

2 You're the losing counsel at the trial

3 court and your client and you have to decide to

4 appeal. Well, as long as the appeal isn't frivolous,

5 as long as you can hang your hat on something, why not

6 appeal? There's very little cost in time and money to

7 rework the trial court memoranda that has already been

8 presented to the District Court. In this day and age

9 with computers, it's very easy to prepare a new brief,

10 do a little bit of extra research, check the cases out

11 since you filed the memorandum. You can put together

12 a very presentable brief at minimal cost. 

13 So you get one more chance to win and you

14 get a chance to win big and the losing plaintiff only

15 has to ante up the attorney's fees, the appellate

16 attorney's fees and the appellant for his attorney and

17 the appellate costs which are minor. I've got two

18 reasons for my --

19 COMMISSIONER: May or may not be minor.

20 MR. FITZPATRICK: Minor in comparison is

21 what I said. They're never going to match the costs

22 of the trial. The discovery alone seems to me to be
131

1 just --

2 COMMISSIONER: A lot of it goes off on

3 summary judgment. It doesn't necessarily mean that

4 the appeal is from (indiscernible)

5 MR. FITZPATRICK: No.

6 COMMISSIONER: Most diversity trials, most

7 (indiscernible) diversity cases, the plaintiff feels

8 because of the District Courts grant summary judgment

9 for the defendant without maybe too much expense,

10 having been (indiscernible) That happens.

11 MR. FITZPATRICK: I would suggest though

12 that that's rare that the trial court costs are going

13 to match the appellate court costs. I think they're

14 are always going to be substantially more.

15 COMMISSIONER: When you finish on this

16 topic, I've got some questions I'd like to ask briefly

17 about the 2nd Circuit.

18 MR. FITZPATRICK: There's two reasons for

19 my proposal. The first is that the trial court loser

20 may not be willing to take an insubstantial appeal if

21 he or she has to reach into their own pocket, not only

22 to pay for their attorney's fees but to pay the
132

1 attorney's fees on the other side. I suggest there's

2 a psychological insult to a losing party to ever have

3 to pay the attorney fees on the other side, that's in

4 addition to just the outlays from the pocket.

5 And then the second reason is one of

6 equity. The defendant has been brought into the

7 court, had to pay their own attorney's fees to defend

8 in the trial court. Then the case goes on appeal and

9 they have to again defend themselves and pay out of

10 pocket costs. And I think that yes, in our system,

11 American law, the plaintiff does get a free bite.

12 What I'm suggesting is that the plaintiff doesn't get

13 two free bites.

14 We could expand this to other cases, but

15 I think that by limiting it to diversity cases,

16 diversity cases are ones in which most of the time the

17 appellate court is not getting to the body of law.

18 Probably it's best to compare it to the sucker growing

19 on a tree. It may be helpful, it may turn into a

20 limb, but most of the time it's just a sucker and it's

21 going to be snipped off and it's going to be snipped

22 off by the state Supreme Court that makes the decision
133

1 as to what the law is in that state. So it's not

2 adding to the body of law.

3 Now, when I said this was a modest

4 proposal, I meant it. There were only 3,700 appeals

5 last year in all the Courts of Appeals and only half

6 of those were terminated on merit. So we're talking

7 about 1,800 - 1,900 appeals across the country.

8 COMMISSIONER: Thirty seven hundred

9 diversity appeals?

10 MR. FITZPATRICK: Thirty seven hundred,

11 but only half of those are decided on the merits. And

12 if this proposal was adopted, in order not to create

13 additional work for the judges, I would have the Clerk

14 of the Court assess the fees with a right of review to

15 the authoring judge of the affirmance so that we're

16 not creating, as I said, additional fee disputes

17 before the judges.

18 COMMISSIONER: I was just going to ask you

19 some questions about the 7th Circuit. You're

20 fortunate in that you're sitting -- not sitting but

21 you are serving a court with a preeminent bench.

22 Maybe they're the best in the country or certainly one
134

1 of the best in the country and one of the best

2 (indiscernible) of the way your court has decided to

3 handle the cases with the quality of the bench becomes

4 an interesting question. One, I understand the 7th

5 Circuit continues oral argument in most cases where

6 council (indiscernible)

7 MR. FITZPATRICK: Right. And we have some

8 pro ses who argue, too. Never when they're

9 incarcerated.

10 COMMISSIONER: Right.

11 MR. FITZPATRICK: And the pro se has to

12 write a lucid brief.

13 COMMISSIONER: In order to -- who makes

14 the judgment about pro se argument?

15 MR. FITZPATRICK: About whether they're

16 set? I do. But the panel can -- the system in ours

17 is that I can make the initial decision but the three

18 judges always can change that if they want. They can

19 give more time, they can take away time. There may be

20 cases -- in fact, this frequently happens. There are

21 cases that are submitted without argument because we

22 have an incarcerated pro se or we have a pro se who
135

1 has not written a lucid brief and then it goes to a

2 factual panel where the judges talk about it and

3 decide, you know, we need counsel on this case.

4 Appoint counsel and it goes through the argument

5 stage.

6 PROFESSOR MEADOR: What are these cases

7 where a counsel requests argument but argument is

8 denied?

9 MR. FITZPATRICK: We don't have it.

10 PROFESSOR MEADOR: I thought you said

11 nearly all cases where counsel requests it. It was

12 the nearly all that I assumed there must be some--

13 MR. FITZPATRICK: No. I don't know of any

14 cases that we've ever denied counsel. If one counsel

15 wants it and if we just automatically put them on, if

16 this is a counsel of case, I set it for argument.

17 PROFESSOR MEADOR: So in all counsel cases

18 where counsel requests it, you set argument.

19 MR. FITZPATRICK: Right.

20 PROFESSOR MEADOR: That's true in the 2nd

21 and the 6th and probably the 1st. I'm not quite sure

22 on the 1st but it's true in several courts.
136

1 MR. FITZPATRICK: We've had cases, too, I

2 should point out, where both counsel asked to waive

3 argument and, just like in the 6th Circuit, the court

4 says no. There's something here that needs to be

5 argued.

6 PROFESSOR MEADOR: But in most cases you

7 would permit them to waive.

8 MR. FITZPATRICK: Right. A lot of times,

9 like the (indiscernible) cases that come from southern

10 Illinois, for example, or southern Indiana, it's not

11 a big money case and I'm sure, although we don't know

12 why, counsel is asking to have it submitted in order

13 to save cost.

14 PROFESSOR MEADOR: What do you use the

15 staff attorneys for? Pro se cases?

16 MR. FITZPATRICK: We have two different

17 areas. One, they work up the motions, all the motions

18 that come into the court, and make an oral

19 presentation to the judges on each motion. There are

20 some procedural motions such as extensions of time

21 that the staff attorneys would rule on directly.

22 That's about a quarter of the 20 people who work on
137

1 the motions process. And that's everything from

2 procedural to substantive such as 1292B, Mandamus

3 (phonetic sp.) injunctions phase, etcetera. And that

4 system works well because the presentation is oral to

5 the judges, so it moves the cases along --

6 COMMISSIONER: (indiscernible)

7 MR. FITZPATRICK: -- very quickly. The

8 other cases fall into two different categories. One,

9 we have what we call short argument days. It's nine

10 cases, set two days in a row, 10 minutes a case

11 usually, they're usually one issue cases and there'll

12 be one staff attorney assigned to work on a case with

13 the three judges. That staff attorney will prepare a

14 memorandum, give it to the judges who will have that,

15 read the briefs and the memoranda and then if they're

16 in agreement with the way this has been written and

17 the recommendation, the judge will then use that

18 memorandum to prepare a reason to unpublish the order.

19 Most of the time it's not published.

20 COMMISSIONER: That might be a pro se

21 case?

22 MR. FITZPATRICK: Very seldom. That
138

1 probably is more or less your sentencing, your

2 criminal sentencing cases where they're arguing

3 relevant conduct, obstruction of justice --

4 COMMISSIONER: Some 1983 cases and simple

5 (indiscernible)

6 MR. FITZPATRICK: Correct. One issue.

7 They tend to be Social Security, the substantial

8 evidence questions and --

9 COMMISSIONER: What do you do with the

10 staff with a pro se cases that are not --

11 MR. FITZPATRICK: Okay. Assignment is

12 very similar. A law clerk is assigned to the case,

13 works up a memoranda, and then in bunches of about

14 nine to 12, there'll be a conference with three

15 judges. The judges will have the staff attorneys

16 there, they'll have read the briefs and the memorandum

17 and they'll have a discussion much as they would have

18 had if there had been oral argument. So we refer to

19 these as collegial decision making as opposed to what

20 I call linear decision making where it goes from one

21 judge to the second judge to the third.

22 PROFESSOR MEADOR: Do you have staff draft
139

1 opinions or just the staff memo?

2 MR. FITZPATRICK: They do a memo but the

3 memo is clearly -- the staff attorney is told to keep

4 in mind that we'd like to be able to, if possible,

5 convert the memorandum to an unpublished order if the

6 judges so desire.

7 PROFESSOR MEADOR: Is there a high degree

8 of similarity between a final opinion issued by the

9 panel and staff memo?

10 MR. FITZPATRICK: I think in all fairness

11 I'd have to say it depends on the judge and the panel

12 and how good the staff attorney had done. We get

13 frequently, and I'm sure this doesn't come as a

14 difference from Judge Rymer and Judge Merritt's

15 experience, you have some staff attorneys or law

16 clerks who want to write on eery particular issue

17 there is that could be conceived of in this case and

18 the judges are not interested in covering every

19 conceivable issue. They think this case involves one

20 issue and so they'll rewrite it and then just cover

21 that issue that they want covered. So it really

22 depends on who the judges are and what the quality of
140

1 the work the staff attorney has done.

2 COMMISSIONER: One way to ask that

3 question is how much more or less delegation is there

4 by the judge or judges to a staff attorney then there

5 would be by a judge to the judge's elbow (phonetic

6 sp.) clerk and I gather it would be more or less the

7 same.

8 MR. FITZPATRICK: It's the same. There's

9 no difference. We really watch for that because we

10 don't want an undue delegation and the judges have

11 been very good about -- I mean when their names are on

12 it, their names are --

13 COMMISSIONER: I take it some judges

14 delegate it to their elbow clerks more than other

15 judges.

16 MR. FITZPATRICK: That's correct.

17 COMMISSIONER: One other question. The

18 7th Circuit is publishing (indiscernible) more

19 opinions (indiscernible) than any of the other

20 Circuits. Is this a recent thing with Judge Posner or

21 has this been tradition or am I wrong?

22 MR. FITZPATRICK: No. Actually, I got a
141

1 call shortly after Judge Posner was on the bench,

2 maybe three years afterwards, from a reporter wanting

3 to know why Judge Posner was sitting at twice as many

4 cases as all the other judges and I said he wasn't.

5 He's sitting at the same number of cases. And they

6 said well, why does he have twice as many opinions?

7 And I said we've got a standard that addresses what

8 cases should be published and if that case adds to the

9 body of law, it ought to be published and if it

10 doesn't add to the body of law, then it shouldn't be.

11 And if you read Judge Posner's decisions, it's rare

12 for one not to be adding to the body of law in some

13 fashion.

14 COMMISSIONER: So Judge Posner accounts

15 for the additional --

16 MR. FITZPATRICK: He accounts for, I'd

17 say, a portion of it.

18 COMMISSIONER: And other judges, I guess,

19 do some of the same.

20 MR. FITZPATRICK: Right. And I would say

21 that we let each judge decide whether or not to

22 publish. If a judge wants to publish, that's the
142

1 final decision. Nobody says you can't publish.

2 Clearly, in my humble opinion, there are cases that

3 are published that should never be published. They

4 don't add anything to the body of law.

5 JUDGE MERRITT: Anything else you want to

6 talk about?

7 MR. FITZPATRICK: No. Have a safe trip

8 back.

9 JUDGE MERRITT: We appreciate your

10 appearance here, all the good work you do, and we

11 appreciate your helping us here in (indiscernible) Do

12 my colleagues have anything further the want to ask?

13 If not, we're not in court but I guess I should say

14 we'll stand in recess.

15 MR. FITZPATRICK: Thank you.

16 (The proceedings were concluded.)

17

18

19

20

21

22
143

123456789

10