Back to the Drawing Board: Re-examining Accepted Premises of Regional Circuit Structure

I. INTRODUCTION Regional boundaries have defined the lower federal courts since their inception. But the federal courts have changed markedly in the intervening years in terms of the jurisdiction, staffing, and role of each tier within the federal judicial system. Today, the courts of appeals are almost always the end of the line for litigants. (1) The only path to review by the Supreme Court is discretionary, and the Court takes only a minute fraction of the cases in which certiorari petitions are filed. (2) The balance of cases in federal courts today is heavily weighted toward cases involving federal law. (3) Cases involving application of state law have steadily declined as a fraction of federal court caseloads. (4) Accordingly, it would seem that the federal courts should be structured to promote reasonable uniformity of decision on questions of federal law. Paradoxically, the geographic organization of the federal courts seems to privilege regional over national concerns and may render these courts ill-suited to promote uniform interpretation of federal law. The courts of appeals function as largely independent adjudicatory bodies. (5) The regional structure of the courts of appeals, together with the "law of the circuit" doctrine, values intra-circuit consistency and tolerates considerable inter-circuit conflict. (6) The result is a systemic lack of capacity for uniform development of federal law. The experience of recent decades suggests that political will is lacking to undertake a broad restructuring of the courts of appeals that involves either adding appellate courts or departing altogether from the concept of regional organization. (7) Congress has acted rarely and cautiously in response to excessive caseloads. Beginning in 1929, when it carved the new Tenth Circuit out of the former Eighth Circuit, (8) Congress chose intra-circuit reform over system-wide adjustments. Since the split of the Eleventh Circuit from the former Fifth Circuit in 1980 (9) and the creation of the Federal Circuit in 1982, (10) the only structural reform measure enacted was a significant increase in authorized judgeships in 1990. (11) Following that expansion of the federal judiciary, circuit judges themselves have debated the merits of any further expansion. (12) Yet calls for reform are persistent, even though continuing to regard the existing regional boundaries as sacrosanct makes meaningful reform that preserves federal appellate justice in its traditional form difficult to imagine. This article aims to determine which of the accepted structural features of the courts of appeals are essential by demonstrating that the federal courts are designed to assure the supremacy and uniformity of federal law, and that regional organization was intended to foster, not to negate, uniformity. And it identifies and evaluates specific entrenched ideas about circuit structure. Thus, this article considers the Hruska Commission's (13) articulated (but largely unexplained) criteria, (14) which hold that (1) circuits should be composed of at least three states; (2) no circuit should be created that would immediately require more than nine judges; (3) a circuit should contain states with a diversity of population, legal business, and socioeconomic interests; (4) realignment should avoid excessive interference in established circuit alignment; and (5) no circuit should contain noncontiguous states. (15) This article also assesses the additional, widely accepted criterion that no state should be split between two or more circuits, (16) and concludes that these criteria have hindered attempts to accommodate the growing appellate caseload by restructuring the courts of appeals in a manner calculated to provide for reasonably uniform interpretation of federal law. (17) It includes an argument that these criteria are generally outmoded, (18) tracing their origin to earlier courts bearing little resemblance to the current courts of appeal, and notes that the criteria are also internally inconsistent. …