Supremely Modest Proposal

by Cliopatria

or, Building a Bridge to the 18th Century
Time for America's favorite parlor game: let's ~~change something!~~ kill time talking about something that'll never change!

Why does a 21st century nation have an 18th century legal system? Don't get me wrong, I'm not arguing for a shift in constitutional powers or against the Enlightenment and English roots of the glorious American legal tradition. I'm just wondering why the system still functions the same way it did in the days of horse and carriage? Why do we tolerate regionalization of federal law (particularly on fundamental issues of constitutional interpretation) when the whole point of federal law is that it's supposed to be the same all over the country? Why is our court system still stuck in the adversarial, challenge-response-precedent model, which leaves so much bad law untouched, and so many uncertainties in place?

The main limiting factors in the 18th century, from a legal standpoint, were speed and manpower. Circuits really were territories covered by judges whose responsibilities required frequent travel. Decisions were promulgated in books which took time to assemble and to distribute, not to mention read and absorb. It would have been very difficult for decisions in one region to be known and applied consistently throughout the nation, at least immediately.

As the American legal system matured, the distribution of information became more consistent, but the basic structure has remained. But, as you well know, information collection and transmission is considerably better organized now, as is the judiciary -- databases, the internet, the growth of government into a bureaucratic machine, all mean that the administrative division of the country into regions does not have to equate legal detachment. Moreover, the communications technology can aid not just horizontal integration, but vertical as well.

First, I propose that rulings of appeals courts, when they apply to federal law and regulation, criminal procedure, etc., should be nationally effective unless contradicted by a ruling in another circuit. This is only a slight change, I realize, but it's actually quite significant. There will be a slightly greater burden of urgency that a plaintiff would have to meet to have a case heard at the appeals level. Conversely, there would be less uncertainty about procedure and interpretation resulting from issues which have only been heard in one or two circuits. It would also raise the profile of the appeals courts, drawing them more directly into the (tense) discourse between the branches. A Supreme Court decision to not hear an appeal of an Appeals Circuit ruling would effectively endorse a ruling, not simply fail to overturn it as it currently does. There is little excuse, in a national court system with 21st century technology, to maintain the legal fiction that one circuit is ignorant of other circuits' rulings. The technology allows for a more open discourse, and that's usually a good thing.

Lest you think, though, that I'm simply shifting power downward, consider this: In addition to horizontal integration, the system should have a much freer vertical flow of information. Lower courts should be able to request clarification from higher courts on matters of interpretation and application. This would not take the right of appeal away from those who receive unfavorable rulings, but it would cut down on the frequency with which different interpretations of higher court ambiguities results in divergent decisions. Lower courts would not be passing up facts at trial, but would be sending on requests for greater specificity in definition of existing rulings. Responses would have to be approved by a majority of the court (I thought about requiring approval from all the members of the majority in the original ruling, but this would preclude clarifications of cases after a justice retires, particularly a swing vote like O'Connor; perhaps majority of remaining members of majority, in addition to absolute majority?), and would appear as a footnote in the original ruling, binding on all lower courts.

The principle of stare decisis, respect for precedent, means that old decisions remain in force as well, unless directly contradicted as a result of a later challenge to the same law or in the same circumstance. There are decisions, though, that go unchallenged so long that they are out of date, positions that represent a moment in time which both society and the law come to regret. I would suggest that a court be allowed, by unanimous vote, to repudiate a previous ruling even in the absence of a specific challenge. Obviously, for lower courts this right would be limited: any case which had been appealed higher would be out of bounds, and the repudiation would have to be based on principles of law rather than on the facts of a case; District courts would be extremely limited in their ability to apply this. Even for higher courts, the right is limited to repudiation: rulings could not be rewritten or revised (beyond the footnote clarifications described above), but would have to be entirely reversed. The reversal would have the same effect as a normal ruling in contradiction to stare decisis: some cases would have to be revisited, some lower rulings reversed (if anyone remains to appeal them) and it's likely that there would be new interrogatories or cases to fill in the ambiguity created by such an act.

But that's normal: the law is an evolving, active system. These changes would allow the judicial record to become more dynamic, reflecting the ability to access it remotely in real-time, and would shift responsibilities within the system without fundamentally shifting power. Legislatures could still pass laws which corrected judicial misinterpretations of legislative intent, could still interpret the Constitution in their own fashions unless or until contradicted by higher courts, could still leave old, bad laws on the books for centuries if they wanted. Executives would still have all the usual lattitudes of appointment and regulation and enforcement, though they might lose a bit of discretionary wiggle room in the process. Both of those branches have taken advantage of the technology to become more efficient, more responsive (to supporters, if not to all constituents): the judiciary needs to move forward as well.

Note on comments: I will be ignoring any comment which dismisses these ideas because of the difficulty of change or unreasoned fear of change, which dismisses (or endorses) one part without considering them as a whole, or which engages in personalities, partisanship or credentialism. You're welcome to post them, and to discuss them; I'm just going to ignore them, myself, that's all.

Followup: Jason Kuznicki thinks I'm off the rails in a few directions. I asked a question in response that I'd like to pose to anyone else who's listening:"if you want to play, what do you think is the greatest flaw in the federal judiciary, and how could it be rectified?"

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More Comments:

Jonathan Dresner - 8/3/2005

Why not both? I'm all for Electoral College abolition, along with non-partisan districting and reliable verifiable voting, but it's only one of the many structural flaws which we have tolerated far too long. Every branch deserves to be reevaluated in light of new understandings, new technologies and new practices.

Greg James Robinson - 8/3/2005

Gee whiz! If we really want to reshape our system and remove an anachronism, why not abolish the Electoral College? See how far you will get with that against entrnched interests. That is chicken feed compared to those that would oppose monkeying with the courts.

Van L. Hayhow - 8/2/2005

A few points as some one who has handled cases in two states and in the federal courts, both civil and criminal. Yes, my practice developed unusually. Specialization works better at the trial level than at the appellate level. In Mass. we have a land court that handles all types of real property disputes. The court's staff has engineers and title examiners as employees. Any expert witnesses better know what they are talking about. Remember in many states and federal districts 90% of cases settle before trial. One of the things that helps settlement is a judge that knows the subject matter. On the other hand a judge that is scheduled to handle a bench trial can become slanted by listening to too much pretrial negotiations. That is why some will not engage in any settlement conferences. Moving judges between calendars can also bring a fresh perspective. A state Supreme Court judge once told me that after a family court judge had been sitting on the divorce calendar for more than five years they looked closer at the appeals because of the difficult nature of the calenders. The business calenders where they try to assign judges that are familiar with business cases seem to work well. Most parties will waive a jury trial to simplify the trials and hearings. As a defense attorney I am not in favor of separate permanent assignments for criminal and civil cases as it leads to expectations of guilt. As for trial judges being able to ask appeals courts for advice, almost all states and the feds have such procedures. But they can be cumbersome because to be fair you need agreement of the parties as to the facts underlying the request and both sides can write briefs for the appeals court which can take months. As to modifying stare decisis, I think that would lead to more complaints from the public and political people that the judges were making it up as they went along. The legislature is supreme in any event.

Sherman Jay Dorn - 8/2/2005

Am I wrong that the Ninth Circuit was the first to hear the "under God" issue?

Jonathan Dresner - 8/2/2005

Well, we'd have to rely, to some extent, on the discretion of the judiciary, much as we do now.

Oscar Chamberlain - 8/2/2005

Actually a number of the Marshall Court decisions were unanimous, but that was in very different circumstances that likely will never appear again.

The ability of a lower court to make a request of an upper court for judicial clarification is interesting. I know there are times that lower courts have been frustrated by the vagueries of their superiors. But I think it would make for chaos.

First of all how would a higher court generate an opinion without it being a full-fledged hearing of the the case at hand? Second, what if a change in higher court membership resulted in a majority that preferred a different solution soon after the original decision was made? In its new advisory capacity an appelate court could chip away at a decision with far less public scrutiny than the minimal amount that is possible now. One or two memeberhip changes later, the same court could be trying to prop the original decision back up.

Jonathan Dresner - 8/1/2005

That's why it has to be unanimous. How many unanimous Supreme Court Rulings have there been recently? Perhaps I should have stipulated that for Appeals courts it must be the full 11-member board.

More generally, this wouldn't "give the courts authority to act on whatever they choose to" but would simply give them a tool for modifying their own terribly outdated and counterproductive errors.

Ralph E. Luker - 8/1/2005

It strikes me as a very unwise thing to do. The courts are currently restrained by not being able to act without a case before them. It strikes me as dangerous to give the courts authority to act on whatever they choose to.

Eric Leigh Muller - 8/1/2005

The Constitution would not permit courts to overrule precedent outside the context of a live case or controversy. It would have to be amended to permit this. (I'm not saying anything, for now, about whether that would be wise: I'm just saying that it would take a constitutional amendment to make it happen.)

John H. Lederer - 8/1/2005

"At the District level, specialization would greatly reduce the court's dependence on lawyer briefs for expertise in specific matters, would increase consistency in handling constitutional questions."
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Perhaps .1% of federal trial level cases involve real (rather than thrown into the pleadings with the kitchen sink)constitutional issues. Perhaps a fifth or a quarter involve state law, either indirectly, e.g. "is defendant a peace officer", or directly because federal criminal or civil law explicitly embraces state law , or because diversity jurisdiction is involved.

"on legal and institutional fronts this country is really pretty consistent"
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Yes and no. The efficiency of trials is markedly improved when judges know what to expect of attorneys and attorneys know what the court expects of them. That is a very localized thing and it varies a lot -- not necessarily split on state lines though state practice influences federal practice rather than vice versa. The differences from court to court are not small.

Those differences do largely disappear at the Appellate level. Arguing a case to the Third Circuit is just like arguing a case to the Fifth Circuit except the judges are less polite. Trying a case in Harrisburg is not, however, like trying a case in Des Moines.

All that being said, I could certainly imagine seperating civil matters from criminal matters.

Jonathan Dresner - 7/31/2005

The case which most immediately comes to mind with regard to the enforceability of circuit opinions is the "Under God" pledge case. The actual constitutional scholars in the crew might have other examples to draw on.

I think I would be more comfortable with speciality courts at the District level rather than the Appeals level. Not because of the anachronistic senatorial privilege in federal judgeships (and military academy appointments), or because of some value to regionalism (frankly, for all the fulmination about red/blue, north/south, etc., on legal and institutional fronts this country is really pretty consistent; my father's been arguing for years that the states themselves are vestigial feudalities), but because I'd be more concerned about the possibility of court-packing and ideological tests applied to those appointments. It'd be hard to avoid "litmus test" questions. There's also the question of qualifications at that level.

At the District level, specialization would greatly reduce the court's dependence on lawyer briefs for expertise in specific matters, would increase consistency in handling constitutional questions. The Appeals (and Supreme) level really should be for constitutional and procedural issues, and that is its own form of specialization, I think.

Sherman Jay Dorn - 7/31/2005

Congress has the authority to change the organization of the federal court system, including where original jurisdictions lie, so a reorganization of the structure below the Supreme Court is certainly feasible without a constitutional amendment.

Let me go a bit further in your direction before heading back to your proposals. You could realign the purposes of the Courts of Appeal not to receive cases on a geographical basis but on a subject basis. So we could have a Court of Appeal for capital and violent crimes, a Court of Appeals for torts, a Court of Appeals for civil-rights cases, and so forth. The arguments against a subject-based division for the Courts of Appeals are many: the importance of knowing something about a region of the country (that was quite important in the Fifth Circuit decisions of the civil-rights era), the relationship of district judges with a specific appeals court, the fact that many cases cross different boundaries of law, the role of senators in proposing judgeships on a geographical basis, and the potential utility of judges who don't specialize in a specific area of law. I don't know if anyone has proposed such a realignment, to be honest, but I suspect the geographical basis would win. (I go through this exercise to point out that I am not fearful of change, since you warned about cutting out comments on that basis.)

So, back to your proposal that the first appeals-court decision in a substantive area of law becomes binding precedent if the Supreme Court doesn't grant cert. To some extent, that already happens, precisely because other appeals courts read their colleagues' decisions. And I think the chance of conflicting opinions is a moderately healthy one, if only to limit the relevance of jurisdiction-hunting (which also already happens). So, let me ask a follow-up question: In which cases were conflicting second or third appeals-court decisions so obviously wrong and so obviously harmful to the Republic that a different arrangement would have prevented?