The virtuosity of the Ninth Circuit leadership in adapting to new technology and new conditions has repeatedly shown the pessimistic forecasts of pro-split advocates to be unfounded. For example, in 1973 the Hruska Commission stated that the division of the Ninth Circuit into territorially based administrative units could not possibly be a useful reform. To take another example, many commentators have urged as a reason for splitting the circuit that a large number of judges leads to a large number of possible panels, with a supposedly concomitant increase in intra-circuit conflicts. Similarly, the unwieldiness of full en banc review in a large court was primarily responsible for the decision of the judges of the old Fifth Circuit to seek division. But the judges of the Ninth Circuit chose instead to experiment with limited en banc panels, and this has worked so well that the provision for further review by the full court has never been invoked .
More cases mean more opinions.
This system also avoids conflicts by notifying deliberating panels of pending decisions by prior panels. The Court s rotating executive committee and restructured circuit council reduce administrative demands on judicial time. The circuit is a pioneer in innovative use of modern electronic communications methods to streamline panel deliberations. Nothing could be more useful to Congress as it considers future systemic reform than to have the concrete empirical information that the Ninth Circuit s experimentation will provide. Even within the present structure of the appellate courts, while there are undoubtedly institutional advantages to a small circuit, there are advantages to a large circuit also.