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Vanderbilt Law Review

Ryan W. Copus

First Page

605

Abstract

The U.S. Courts of Appeals were once admired for their wealth of judicial attention and for their generosity in distributing it. At least by legend, almost all cases were afforded what William Richman and William Reynolds have termed the “Learned Hand Treatment.” Guided by Judge Learned Hand’s commandment that “[t]hou shalt not ration justice,” a panel of three judges would read the briefs, hear oral argument, deliberate at length, and prepare multiple drafts of an opinion. Once finished, the judges would publish their opinion, binding themselves and their colleagues in accordance with the common-law tradition. The final opinion would be circulated to and read by every judge in the circuit, providing nonpanel judges with an opportunity to provide feedback or evaluate a decision for en banc review. And on top of this extensive attention was a reasonable chance for yet more, as the Supreme Court reviewed approximately 3% of the circuit courts’ decisions. But darker days were ahead. A caseload explosion greatly diminished the courts’ reservoir of judicial attention. Between 1960 and 2010, the courts’ caseload increased by 1,436%. The courts responded to this precipitous rise in workload with a series of moves to reduce the time and effort that judges spent on each case. They employed an army of staff attorneys to help decide cases and draft opinions, increased the number of law clerks from one to three or four per judge, and curtailed the availability of oral argument such that in 2017, it was provided in less than 20% of cases...

The shortage of attention threatens to undermine the courts’ ability to decide cases correctly and develop the law coherently. Without the time to carefully consider each case, circuit court judges— traditionally serving as the main source of error correction in the federal courts—will inevitably make more errors of their own.

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