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Published online by Cambridge University Press: 27 December 2018
1 See Hellman, Arthur D., “Jumboism and Jurisprudence: The Theory and Practice of Precedent in the Large Appellate Court,” 56 U. Chi. L. Rev. 541, 541 n.2 (1989).CrossRefGoogle Scholar
2 Peter Graham Fish, The Politics of Federal Judicial Administration 165 (Princeton, N.J.: Princeton University Press, 1973).Google Scholar
3 See Dons Marie Provine, “Governing the Ungovernable: The Theory and Practice of Governance in the Ninth Circuit,” in Arthur D. Hellman, ed., Restructuring Justice: The Innovations of the Ninth Circuit and the Future of the Federal Courts (Ithaca, N.Y.: Cornell University Press, forthcoming 1990) (“Hellman, Restructuring Justice”).Google Scholar
4 See Judith Resnik, “Independent and Interdependent: The Ninth Circuit and the Federal Judiciary,”in Hellman, Restructuring Justice.Google Scholar
5 The idea of dividing the Fifth Circuit had been advanced in a bar journal article in 1950, but the suggestion fell on deaf ears (at 6). Proposals to divide the Ninth Circuit were made as early as 1941. See John R. Schmidhauser, “Judge Browning and the Remaking of the Ninth Circuit's Institutions,”in Hellman, Restructuring Justice.Google Scholar
6 By the time the commission was established, Congressman Celler had lost his seat in the House, but he became a member of the commission as one of the president's appointees. He never fully accepted the broader mandate resulting from the compromise legislation, and the early hearings were punctuated by amusing colloquies when judges and other witnesses began to address themselves to issues other than circuit realignment. See, e.g., Comm'n on Revision of the Federal Court Appellate System, Hearings, First Phase, 12–13, 50 (1973) (“First Phase Hearings”).Google Scholar
7 Pub. L. No. 95–486, § 6, 92 Stat. 1633 (1978).CrossRefGoogle Scholar
8 In the spring of 1989, the issue of dividing the Ninth Circuit was reopened once again. See part III infra.Google Scholar
9 See Hellman, Restructuring Justice.Google Scholar
10 For example, the Judicial Conference of the United States, a purely policy-making body that engages in no adjudication at all, releases only brief summaries of the matters decided at its semiannual meetings. It does not reveal the votes on resolutions, nor does it publish the minutes of its proceedings.Google Scholar
11 Elsewhere in the book, careless reading of a news story led the authors into error on a matter of detail. In describing the closing ceremonies for the former Fifth Circuit, Barrow and Walker include Chief Justice Warren E. Burger among the dignitaries who were sitting on the platform (at 244). The news story on which they rely does allude to “a speech by” the chief justice, but later in the article the reporter refers to a telegram from Burger that was read during the ceremonies. New orleans Times-Picayune, Oct. 1, 1981, at 1. It would be odd to read a telegram from someone who was present, and the account in the New York Times states explicitly that the chief justice was invited but did not attend. New York Times, Oct. 2, 1981, at A14.Google Scholar
12 See Shestack, Jerome J., “Bernard G. Segal: Lawyer,” 129 U. Pa. L. Rev. 1056, 1057–58 (1981).Google Scholar
13 This summary is adapted from the commission's minutes.Google Scholar
14 At the preceding meeting of the commission, in October 1973, only five of the eleven members who were present expressed a preference for the 3–3 split.Google Scholar
15 Although Hellman, Restructuring Justice, is not primarily a historical study, I did do some digging into court papers in an effort to shed light on the origins of some of the Ninth Circuit's innovations. Every now and then I found a revelatory document in a file that had nothing to do with the subject as I had characterized it. Experiences like these led me to wonder whether other elements of the history might have escaped my notice because I did not happen to make a serendipitous discovery.Google Scholar
16 First Phase Hearings 361.Google Scholar
17 Id. at 393. In a similarly oblique way, Judge Griffin Bell—who favored a division of the circuit—noted that “[m]uch of the litigation and legislation which arose from the social revolution of the past decade has abated,” partly because of “the general inclination of the American people to obey laws which in many cases have followed in the wake of enforcing the equal protection clause of the Fourteenth Amendment.”Id. at 455–56.Google Scholar
18 As far as I can recall, no one ever suggested that the commission's report address anything but matters of judicial administration in explaining the recommended realignment of the Fifth Circuit. But I was only a junior member of the staff.Google Scholar
19 Comm'n on Revision of the Federal Court Appellate System, “The Geographical Boundaries of the Several Judicial Circuits: Recommendations for Change,” 62 F.R.D. 223, 227 (1973).Google Scholar
20 At a news conference the day the report was released, Professor Freund said that the committee “conceived [its] function to be to try to examine the conditions under which the Court [was] working and to try to arrive at some suggestions for conditions that would be most conducive to [the Justices'] best performance of their functions.” Press Conference at Federal Judicial Center 1 (Dec. 19, 1972) (transcript on file with the author).Google Scholar
21 Indeed, the members of the study group found themselves on the defensive from the moment the report was issued. One reporter asked, “Isn't this proposal really a conservative proposal; doesn't this fall within the type of criticism… that the conservative law professors and lawyers have been issuing against the Court[?]” Freund responded, “No, we think it will free the Court. The Court may be able to take more… cases that [people] sympathetic with…the liberal trend…would welcome.” Segal was even more emphatic: “Professor Freund is one of the great academic liberal leaders in the country, as ‘liberal’ is here being used. My views of the Warren court and of the so-called activism of the court are well known to many of you. …If what you imply…were the fact, I have no doubt whatever that [Freund, Ehrenhaft, and Segal himself] would have voted against the proposal.”Id. at 23–25.Google Scholar
22 One critic commented, “Of course [the committee members] are honorable men. …Yet, considering their views and the views of the Chief Justice who appointed them, one suspects that they came not to praise the Supreme Court, but to bury it.” Peter Westen, “Threat to the Supreme Court,”N.Y. Rev. Books, Feb. 22, 1973, at 29.Google Scholar
23 A news story published several weeks before the study group issued its report aroused concern that access to the Supreme Court would be cut off for many litigants. N.Y. Times, Dec. 20, 1972; see also N.Y. Times, Nov. 8, 1972.Google Scholar
24 See “Retired Chief Justice Warren Attacks, Chief Justice Burger Defends Freund Study Group's Composition and Proposal,” 59 A.B.A.J. 721, 724–30 (1973).Google Scholar
25 See N.Y. Times, May 7, 1973.Google Scholar
26 Comm'n on Revision of the Federal Court Appellate System, “Structure and Internal Procedures: Recommendations for Change,” 67 F.R.D. 195, 235 (1975) (“Hruska Commission Report”).Google Scholar
27 Id. at 236.Google Scholar
28 Pub. L. No. 97–164, 97th Cong., 2d Sess., 98 Stat. 25 (1982).CrossRefGoogle Scholar
29 Richard A. Posner, The Federal Courts: Crisis and Reform 152–53 (Cambridge, Mass.: Harvard University Press, 1985).Google Scholar
30 Comm'n on Revision of the Federal Court Appellate System, Hearings, Second Phase 400 (1974).Google Scholar
31 Rich, Giles S., “Laying the Ghost of the ‘Invention’ Requirement,” 1 APLA Q.J. 26, 35 (1972).Google Scholar
32 S. Rep. No. 1979, 82d Cong., 2d Sess. 6, reprinted in 1952 U.S. Code Cong. & Admin. News 2394, 2399. The Senate and House reports were virtually identical.Google Scholar
33 Id. at 18, 1952 U.S. Code Cong. & Admin. News at 2410–11.Google Scholar
34 Rich, , 1 APLA Q.J. at 35.Google Scholar
35 Federico, P. J., Commentary on the New Patent Act, 35 U.S.C.A. § 1 at 22–23 (1954, superseded).Google Scholar
36 98 Cong. Rec. 9323 (1952).Google Scholar
37 Giles S. Rich, “Congressional Intent—or, Who Wrote the Patent Act of 1952?” in John F. Witherspoon, ed., Nonobviousnes: The Ultimate Condition of Patentability 1:1, 1:12 (Washington, D.C.: Bureau of National Affairs, 1980).Google Scholar
38 See Federal Courts improvements Act of 1979: Hearings on S. 677 and S. 678 Before the Subcomm. on Improvements in Judicial Machinery of the Senate Judiciary Comm., 96th Cong., 1st Sess. 515 (1979) (“1979 Senate Hearings”).Google Scholar
39 For example, Chicago patent attorney Sidney Neuman, representing the Bar Association of the Seventh Federal Circuit, expressed concern that a single national court dealing with all patent appeals would have “the potential for being captured by special interests,” but he emphasized that the new court could “go…either way”—i.e., become “either a propatent or an antipatent court.”Court of Appeals for the Federal Circuit, 1981 Hearings Before the Subcomm. on Courts, Civil Liberties, and the Admin. of Justice of the House Judiciary Comm. 97th Cong., 1st Sess. 148 (1981) (“1981 House Hearings”). Interestingly, the chairman of the subcommittee interpreted Neuman's comments as “suggesting that the projected court would more likely be pro parent.”Id. at 206 (remarks of Rep. Kastenmeier).Google Scholar
40 See, e.g., Industrial Innovation and Patent and Copyright Law Amendments: Hearings Before the Subcomm. on Courts, Civil Liberties, and the Admin. of Justice 96th Cong., 2d Sess. 726 (1980) (“1980 House Hearings”); 1979 Senate Hearings at 111–12.Google Scholar
41 1980 House Hearings 734.Google Scholar
42 Id. at 745.Google Scholar
43 One witness at the House hearings alluded to this point but quickly shifted ground: “The corporate bar tells us that they are… supporting this proposal [because] it will bring uniformity and certainty and because they like the way Judge Markey's court has been behaving over the past few years…—but that is not what we are talking about. …Are we going to take [some] areas…out of the mainstream of appellate review? I submit we should not.” 1980 House Hearings 780–81 (testimony of patent attorney George Whitney).Google Scholar
44 See Nicholas C. Yost, “Venue, Periled,”N.Y. Times, Fed. 12, 1982, at A35 (op-ed).CrossRefGoogle Scholar
45 One of the most fascinating aspects of the Fifth Circuit battle, as reported by Barrow and Walker, is the way in which Judge Wisdom marshaled a small army of former law clerks who occupied positions of power or influence in Washington (at 168, 260).Google Scholar
46 For example, one of the most cogent statements in opposition to the centralization plan came from the Bar Association of the Seventh Federal Circuit. Although the association argued effectively against “specialization,” it lost credibility when it insisted that the alleged lack of uniformity in the patent decisions of the courts of appeals was a “myth.” 1979 Senate Hearings 692; see ah 1981 House Hearings 144–45. The association did rebut Judge Markey's attacks on “non-statutory slogans” supposedly followed by the regional courts of appeals, 1979 Senate Hearings 697, but the rebuttal was buried in a lengthy and technical position paper.Google Scholar
47 An analysis of the first five years of the work of the new court by an author who is generally sympathetic to the concerns that led to its creation concludes that for the most pact, the Federal Circuit “is a good court for patentees.” Rochelle Cooper Dreyfuss, “The Federal Circuit: A Case Study in Specialized Courts,” 64 N.Y.U. L. Rev. 1, 26 (1989). For example, “defending patentability is now much easier,” and “the court's new rules…pose fresh obstacles for challengers.”Id. However, the author also argues that the “current climate” is more favorable to protection of intellectual property rights and that, in any event, not all of the new court's jurisprudence benefits patentees. Id. at 27–28.Google Scholar
48 S. 948, 101st Cong., 1st Sess. (1989).Google Scholar
49 Mark O. Hatfield & Slade Gorton, “Time for a New Federal Circuit in the West: Why the Ninth Circuit Should Be Divided,”Daily J. Rep., Sept. 29, 1989, at 2, 3.Google Scholar
50 135 Cong. Rec. S5026 (daily ed. May 9, 1989).Google Scholar
51 Position Paper of Senator Slade Gorton on the “Ninth Circuit Court of Appeals Reorganization Act of 1989” 7 (Aug. 1, 1989) (on file with the author).Google Scholar
52 Foster Church, “Splitting the 9th Circuit,”Sunday Oregonian (Portland), Oct. 22, 1989, at K1.Google Scholar
53 Id. (quoting Nan Aron of the Alliance for Justice).Google Scholar
54 Bator, Paul M., “What Is Wrong with the Supreme Court 51 U. Pitt. L. Rev. —, — (forthcoming 1990).Google Scholar
55 See “Retirement of Mr. Chief Justice Warren,” 395 U.S. vii, xi (1969) (remarks of Chief Justice Warren).Google Scholar