Forthcoming in 8 Journal of App. Practice & Process 141 (2006)


In November 2005, four prominent legal organizations sponsored the second National Conference on Appellate Justice. One purpose was to take a fresh look at the operation of appellate courts 30 years after the first National Conference. As part of the 2005 Conference, small groups of judges and lawyers gathered in breakout sessions to discuss specific issues about the operation of the appellate system. This article summarizes and synthesizes the participants’ comments. The article is organized around three major topics, each of which builds on a different contrast with the 1975 conference.

First, the participants in the earlier conference apparently assumed that appellate courts carry out their work in isolation from the political and social conflicts of their time. No one today would accept that picture, but has immersion in controversy changed the way appellate courts carry out their business? That is a different, and more difficult, question.

Second, the 1975 conference took place at a time of ferment over issues involving precedent, uniformity, and appellate structure. Today, concern about disuniformity in appellate decisions barely registers on the seismometer of legal discourse. This is particularly remarkable at the federal level, given that the only tribunal with authority to resolve conflicts with nationally binding effect—the Supreme Court of the United States—has actually reduced its decisional output to half of what it was in 1975. Is this a problem? And what about uniformity in state systems?

Finally, issues of volume, process, and delegation of responsibility aroused great concern among prominent judges, lawyers, and academics in the 1970s. Today, there is little outcry today over the appellate shortcuts that once aroused so much dismay. Is this because people were overreacting to the phenomenon of rapid growth? Or has the quality of appellate justice deteriorated through incremental steps that have gone unnoticed?


Courts | Judges | Litigation

Date of this Version

January 2007