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This chapter considers the restructuring of the federal judiciary during the period of Republican dominance from the inauguration of Rutherford B. Hayes in 1877 to the inauguration of Woodrow Wilson in 1913. It shows that Gilded Age and Progressive Era politicians pursued judicial reform that focused less on the extent of judicial power and more on the structural logic and internal consistency of the institutional judiciary more generally. The chapter discusses the two stages in which judicial institution building occurred during the period: first, the Gilded Age attempt to unburden the Supreme Court by appointing a new slate of judges to staff circuit courts (1877–1891); and second, the Progressive Era unification and synchronization of all laws concerning the judiciary in one statute (1892–1914). The role played by Republicans and Democrats in judicial institution building in the Gilded Age and Progressive Era is also examined.

This chapter focuses on Learned Hand's years as Second Circuit Court of Appeals judge and his relationships with fellow judges. The distinctive role Hand played on the Second Circuit during his first decades there emerges clearly in the many hundreds of pre-conference memoranda he preserved. Their most notable characteristic is the sheer joyful thoroughness with which he tackled each case. The court confronted a very wide range of subjects in a seemingly endless flow of cases, many of them of little apparent interest to anyone other than the litigants' lawyers. Yet whatever the subject—patents and copyrights, maritime law, bankruptcy, corporate and commercial law, citizenship and aliens' deportation, criminal law, problems of evidence and jurisdiction—Hand unflaggingly sought to get to the bottom of the facts and the law.

This chapter details Learned Hand's accession to chief judgeship after fifteen years as circuit court judge. He gained the position not as a reward for outstanding work, but automatically: the position is given to the sitting judge with seniority of service. Far more dramatic than the elevation itself were the circumstances surrounding it, for the position became open in 1939 because the incumbent chief, Martin Manton, resigned under threats of impeachment and criminal indictment. When Hand took over the position, he sought to improve relations between the chief and the other judges, and to purge the courthouse staff of second-rate political appointments.

The previous chapters have exposed the deterioration of the U.S. Circuit Courts of Appeals over the last forty years. During that same forty-year period, the courts have been the subject of extensive study and investigation by various governmental and nongovernmental bodies. In fact, thirteen separate committees, commissions, study groups, reports, and plans have addressed the circuit courts' problems and have offered an array of solutions. This chapter is composed of two sections. The first section simply treats the studies in chronological order; the second abstracts from the studies certain recurrent diagnoses, recommendations, and proposals and discusses them thematically. It is argued that these studies typically either ignore the central question of the propriety of the appellate triage regime, or, if they address it, make recommendations for relatively minor alterations, which then are ignored by the policy makers.

Chapter 11 showed that the judiciary, by a variety of means, has made a unilateral policy decision to restrict its numbers. To justify the choice, the judiciary has offered a wide array of extremely weak arguments. Some of the anti-expansion arguments inveigh against creating new circuits, others oppose enlarging the existing circuits, and still others reject the establishment of nationwide courts of specialized subject matter jurisdiction. Despite the differing approaches of the anti-expansion arguments, two features unite them: they all seek to restrict the size of the federal judiciary; and nearly all of the arguments are weak, some embarrassingly so—the sort of arguments that the judges would reject out of hand had they been asserted by advocates practicing before their courts. Finally, the arguments against more judges ignore the quality of justice dispensed to litigants. This chapter evaluates those arguments.

This chapter focuses on Learned Hand's life and career during the postwar years. On January 27, 1947, Hand turned seventy-five. His good health and undiminished acuity gave him no reason to break his vigorous stride. Instead, he continued busy and absorbed as the presiding judge of the Second Circuit, and pursued his interest in the politics of the day.

This chapter details Learned Hand's promotion to the Second Circuit Court of Appeals. By the spring of 1917, after only eight years on the bench, Hand was the most senior judge of his district. He had grown more confident about his talents, and the increasing attention to his rulings by lawyers, fellow judges, and professional publications reinforced his self-esteem. Yet many of his daily chores as a district judge seemed ever more routine and dull. Increasingly, the Second Circuit summoned him to hear appeals, and he found that the appellate work gave him some of his most enjoyable and rewarding days. A permanent seat on the Circuit Court of Appeals, he knew, would assure him of regular work on legal problems of interest and significance. Hand entered the race for promotion in July 1924, and within a month, he learned that the nomination was his. His road to the Second Circuit was assured by the support he received from the judge whom he succeeded there, Julius Mayer. The Senate confirmed Hand, unanimously and without hesitation, on December 20. A few days later, Hand received his commission as circuit judge, and on December 29 he was sworn in by senior judge Charles M. Hough.

Circuit courts have dealt with their expanded caseload by increasing the number of decision makers. Although Congress and the judiciary have been unenthusiastic about efforts to expand the numbers of circuit judgeships, they have been much less reluctant to expand the number of personnel involved in the decision-making process. This chapter focuses on two types of personnel: judges sitting by designation, usually district judges, judges who have taken senior status, and circuit judges from other circuits; and para-judicial personnel (personal law clerks, staff attorneys, appellate commissioners).

This chapter discusses the history of the circuit courts of appeals. For the first hundred years, there was no separate set of intermediate courts of appeals, though Congress had experimented with various court configurations to perform their function. Then in the Evarts Act (1891) and the Judges' Bill, Congress created the current appellate court system, intending that the circuit courts of appeals would perform the traditional functions of a common law appellate court—the correction of trial court error and the incidental law-giving function needed to explain the error correction results. The courts functioned this way for nearly eighty years until an explosion of appellate litigation required that these courts change in primary function, staffing, and internal operating procedure.

This chapter explores the establishment of the non-citation rules, their faults, their eventual demise, and the citation practice in the circuit courts today. The discussion covers the pros and cons of the no-citation rule; the adoption of Rule 32.1 and its impact; and some findings of the Federal Judicial Center's landmark 2005 report entitled Citations to Unpublished Opinions in the Federal Courts of Appeals.

This introductory chapter sets out the book's focus, namely the deterioration of the U.S. Courts of Appeals. These courts decide over fifty thousand cases per year, out of which the Supreme Court usually chooses to review fewer than one hundred. Thus, from the litigant's point of view, the decisions of the Courts of Appeals are, for all practical purposes, final—the last stop in the judicial system. While any significant change in so important an institution would be noteworthy, the change that this book treats is remarkable for additional reasons. First, it happened so quickly—over a span of only thirty years, one legal generation. Second, the shift occurred entirely at the impetus of the courts themselves, with no executive and very little legislative input. In other words, the radical shift is entirely of the judges' making. The third reason flows from the second; when stripped of all rhetoric, the reason for the change in the circuit courts is that the judges prefer the new arrangement. The fourth reason is that the change in the courts of appeals represents a major reallocation of government benefits, draining them from the routine middle-class litigants and lavishing them on the wealthiest and most powerful litigants. Finally, the revolution has attracted little attention from the legal profession and even less from the public and, amazingly, even less from the judges themselves. An overview of the subsequent chapters is also presented.

This chapter examines several premises of the limited publication regime. It begins by considering the law of the circuit doctrine because it determines what is at stake in the precedent/nonprecedent debate. It then discusses the four assumptions that support limited publication: limited publication saves judicial resources; not all appellate opinions need to be published; early identification of opinions that need not be published is possible; and full publication imposes excessive costs on law's consumers.

One of the most important strategies of the Appellate Triage regime is limiting the publication of circuit court opinions. This chapter examines the steps leading to the adoption of that strategy and the effects of limited publication on the courts, the bar, and the litigants. It concludes with a look at the publication rates in the courts of appeals as well as the contents of their Publication Plans today.

The U.S. Circuit Courts of Appeals have responded to the caseload flood with the system of Appellate Triage, a series of appellate process truncating devices. These devices, used to dispose of the less interesting portion of the circuit courts' caseloads, have helped the courts keep current with their dockets, but at a significant cost. This chapter discusses the judicial establishment's opposition to the single most obvious solution to the caseload glut—the creation of additional judgeships.

Chapter 8 explores Washington’s role as a circuit judge holding trials and hearing appeals outside of the Supreme Court. In this era, Supreme Court justices spent most of their time on a lower federal court, as there were no separate federal circuit judges. Washington’s circuit was primarily in Philadelphia, and so the chapter delves into the practice of that court, the lawyers who appeared there, the way the justice conducted jury trials, and some of his major opinions. The chapter also assesses how Washington thought through problems as a judge, with the aid of one of his journals and his rough notes on cases and draft opinions.

Chapter four moves the narrative from Holmes County to the U.S. Fifth Circuit Court of Appeals. The chapter explains the legal shift from freedom of choice to outright school desegregation. Segregationist resistance, in particular by Judge Harold Cox, is noted as well.

With the collapse of the Korean Provisional Government and subsequent period of retrenchment, there was no longer a supreme authority to coordinate activities within the diaspora. Nevertheless, questions of state power and its uses continued to dominate the political concerns of all Koreans abroad. These questions however assumed a greater local significance as struggles over the right to leadership played out at the local level. At the same time, these local struggles were inextricably linked to larger diasporic processes in the independence movement. This chapter analyzes this dialectical relationship between local level community dynamics and diasporic processes at the global level through a close examination of the highly contentious legal battles within the Korean National Association of Hawaii in 1931 that grew out of struggles for community leadership in Hawaii. With no central sovereign authority of their own, Koreans in America turned to U.S. state structures to legitimate leadership within the community.

This chapter advances some counter-arguments against the limited publication regime. There are four such arguments. First, limited publication reduces judicial accountability; second, it lessens judicial responsibility; third, limited publication fundamentally changes the manner in which our decisional law operates; and finally, the burden of limited publication falls most heavily on the poor and disfavored in our society.

Harry Blackmun was perceived as having a difficult time adjusting to his new position on the nation's highest tribunal, and to other major changes he was undergoing at that time, because of several instances wherein doubts arose regarding his capabilities and some thought he was not fit for his new position. His reactions to such doubts entailed certain degrees of both insecurity and humility. Concerns were raised about certain cases that were left hanging as Blackmun left the Eighth Circuit, but these were taken care of graciously by Blackmun's colleagues at the circuit court. This chapter discusses how, being a new member of the Court, Blackmun was required to acquire his own staff. This staff is to be comprised of eight associate justices with one secretary each, three law clerks, and a messenger. This chapter identifies those who were to compose this staff, such as Shirley J. Bartlett, Wanda Syverson Martinson, and Wanneth Smith, among others.