Introduction to the National Conference

Welcome to the 2005 National Conference on Appellate Justice. We have representatives here from all aspects of the American appellate world--state and federal appellate judges, appellate lawyers, staff attorneys, court administrators. We also have trial judges and law professors. Each of you has been invited because of what you can contribute to the deliberations and thus to the strengthening of our appellate courts in the twenty-first century. We also hope that this will be a learning experience for all of us. Thirty years have passed since the last assemblage of such appellate talent. That was the 1975 National Conference on Appellate Justice, the first, and until now, the only such conference. It was convened by the Advisory Council for Appellate Justice and co-sponsored by the Federal Judicial Center and the National Center for State Courts. Of the thirty-three members of that Advisory Council, I regret to say that only eight remain. However, I am happy to say that five of those are with us at this conference. They are, in addition to myself, Judge Wilfred Feinberg of the United States Court of Appeals for the Second Circuit, Shirley Hufstedler and Seth Hufstedler of California, and Paul Carrington of the Duke law faculty. It is truly rewarding to have here that hardy group of survivors from our long-ago labors in the appellate vineyard, and to remember the other surviving members of that 1975 conference who are not with us tonight: Griffin Bell, Winslow Christian, and Roger Cramton. At that conference, I was privileged to deliver some remarks, and I included a comment I had heard from an English judge. It is still pertinent, so I offer it again. He said, speaking of the English three-tiered system--trial courts, the Court of Appeal, and the House of Lords--that the trial judge should be quick, courteous, and right. But that is not to say that the Court of Appeal should be slow, rude, and wrong, for that would be to usurp the function of the House of Lords. Just a few words about the past. From the beginning of our modern appellate systems in the nineteenth century until the 1960s, the procedure was essentially the same for all appeals--what we now call the traditional process. Lawyers filed briefs; they appeared in person before the judges to argue cases. The judges conferred among themselves; one of them wrote an explanatory opinion which was published in a bound volume. But in the late 1960s that began to change in reaction to a huge upsurge of appeals. The upsurge continued without letup, hitting the intermediate courts especially hard. Those courts are the front line in the appellate system, breakwaters against which crash waves of appeals, all of which must be decided. The courts of last resort are situated in more placid waters to the rear, where they can think great thoughts and control their swelling dockets by denying review as a matter of discretion. In response to the volume upsurge, judges were added to the intermediate courts and new courts were created. Courts began experimenting with novel internal procedures. These included screening cases to put them on different decisional tracks, with some cases bypassing oral argument and court conferences and receiving only abbreviated opinions or one-line affirmances. Many opinions went unpublished. Courts began to employ central staff attorneys in addition to law clerks. As in other fields, necessity was the mother of invention. But those innovations were controversial, both inside and outside the courts. Many judges and lawyers saw them as threatening the integrity of the appellate process. Lawyers were especially disturbed by being shut off from oral argument. There was concern that those new central staff attorneys would lead to improper delegation of judicial responsibility. All those concerns mounted during the early 1970s, and they, among others, are what led to the 1975 conference. That conference produced five volumes of material. …