Justice on Appeal—One Way or Many?

After two centuries of our nation’s existence, discussions of federalism are certain to sound familiar. The ground of argument has been worked so thoroughly, there is hardly a patch left unturned. Conventional watchwords suggest the competing interests: adaptability to local circumstances contrasted with efficiencies of scale, circumscribed experimentation contrasted with prevention of forum-shopping, local self-government contrasted with the cosmopolitan perspective. The most that can be done now, absent exceptional insight, is to display these choices in a fresh context.

What follows is yet another variation on the theme. It concerns the propriety, perhaps the desirability, of diversity among the federal courts of appeals in the procedural means by which they dispose of their caseloads. These internal procedures include, for example, the number of cases calendared for each judge, the extent to which oral argument is granted, nonpublication of opinions, and use of court staff. The problem dealt with here is the extent to which these procedures should be uniform throughout the circuit courts.