Split Decision. Time to break up the Ninth Circuit.

National Review ^ | September 16, 2003 | Andrew Peyton Thomas

[aristeides]

So either a bunch of precedents in states like Arizona suddenly lose their force, or there are different precedents for different states within a circuit. (And what would this say about the legal validity and legal consequences of prior decisions by, say, federal district courts within Arizona following Ninth Circuit precedents?) Either is highly undesirable. Predictability of result is one of the most important factors in the law.

[cardinal4]

I read somewhere that the 9th has more overturned desicions than any other.

[only1percent]

Because you'd be creating a legal mess by putting lots of states in different circuits.

Yup. The split of the old 5th into the new 5th and the 11th worked out very well, because the new 11th inherited all old 5th circuit precedents (and they're all still good law unless they've been reversed by the 11th).

There are definitely some problems in allocating judges because the "home states" don't really correspond to the caseload -- Californians are actually underrepresented relative to the caseload. (Idaho doesn't generate a lot of criminal appeals...)

[jmstein7]

No. The 11th covers the south east.

Congress should break-up the 9th circuit. It certainly has the authority to act.

[pogo101]

This is silly. You consider it more important --

1) for precedents to be "predictable," and to avoid requiring lawyers and judges to learn one simple demarcation point ("after 2005, we're in the 12th, not the 9th"),

than

2) for Circuits to consist of geographic communities of interest to the extent reasonably possible, as intended by the Circuit system in the first place, and to replace Circuit arrangements that have become ridiculously outdated with the passage of 160 years.

I think it's an easy, easy call. The system is broken. Sometimes the best fix is simply to cleave one of its parts. But all I'm saying is, TO RULE OUT an overall realignment ON THE GROUNDS OF "predictability" -- something that wouldn't really be affected -- and avoiding a "legal mess" consisting of nothing more than having to remember a demarcation date, is short-sighted. You'd still have predictability of result: if AZ moved to a 12th Circuit in 2005, its home circuit (for cite purposes) would be the 9th before and the 12th after. Easy.

[aristeides]

If what you're now suggesting is breaking up the 9th into 2 circuits: the old 9th (California plus maybe some other states) and a new 12th (the rest of the circuit), that's precisely what I'm in favor of. That's how the 5th was split into a 5th and an 11th. In that case, as in the 11th, the old precedents would still have force, in both the remaining 9th and in the new 12th. (I thought you were suggesting something like putting Arizona in the 5th Circuit, Idaho in the 10th, Montana in the 7th, and so on. If you're not, I have no argument with you.) No mess, with questions arising about the force of old precedents in a different circuit.

Why create a mess, when you can achieve much the same results in a perfectly orderly way by just splitting the 9th in two?

[pogo101]

I'm suggesting starting from scratch and creating 11 or 12 Circuits -- some of which may be the same as the old, but many won't be -- according to what seems the best groupings for today and for the future. That's a much BETTER result than what you propose, not "the same result."

Splitting the 9th -- all of the proposals for which that I have seen leave Alaska in the same circuit as Arizona -- is a distant second choice, but still preferable to the current status. I just think that you're putting wayyyyyy too much weight on this notion that, due to "predictability," etc., which carries only a dramweight of force with me, the ONLY way we EVER should change circuits is to cleave existing ones in two, but that (to you) the boundaries of the existing Circuits NEVER may be moved. The horror!!

[pogo101]

Dufekin has a sample realignment in post #7. I simply reject the notion that realigmnent would cause the "mess" you predict.

We're going round in circles now, so let's just leave it. I understand your reasons for rejecting any realignment and insisting ONLY on a split, and I wholeheartedly disagree with them as overblown.

[glennaro]

An article in today's Democrat Party newsletter -- a.k.a. The Sacramento Bee -- attempts to portray the 9th as a blend of conservative and liberal ideologies, with the Bee's Legal Affairs writer noting that the "conservatives" on the court are more consistent in adhering to their principles. I normally like works of fiction ...
See it at: http://www.sacbee.com/content/politics/recall/story/7430896p-8373894c.html

[McGavin999]

I think the 9th circut should be over San Francisco. The new courts should take care of the rest of us. Personally, I'm horribly embarrassed to be in their jurisdicition.

I'm not fond of judges who would be king.

[pogo101]

It really was a knee-slapper of an article, wasn't it? Jesse Choper was a prof of mine at Boalt, when he also was dean there. He knows better. He's just liberal and making the liberal - spin case, which is a form -- a FORM, mind you -- of honesty. I challenge him to name several conservative decisions from the liberal judges.

[nutmeg]

read later bump

[Credo]

I meant to say the 4th was busted up into the 4th and the 11th. I think that's right. The 9th could follow that example.