PDF《THE CIRCUIT COURTS》

61 S.C. L. REV.

421 (2010) (analyzing the practices and case statistics of the Fourth Circuit);

Stephen L. Wasby, A Look at the Smallest Circuit,

43 SUFFOLK U. L. REV.

417 (2010) (describing various practices of the First Circuit). Furthermore, some scholarship has examined case-management practices generally, but none of it has examined the specific practices of the different circuits. See, e.g., Jeffrey O. Cooper &

Douglas A. Berman, Passive Virtues and Casual Vices in the Federal Courts of Appeals,

66 BROOK. L. REV.

685 (2001) (examining the management of caseloads in the federal appellate courts generally);

LEVY IN PRINTER PROOF 10/13/2011 9:48:38 AM

318 DUKE LAW JOURNAL [Vol. 61:315 Even within the judiciary, a void in knowledge exists. Judges themselves acknowledge that they are unacquainted with the case- management practices of courts outside their own.

6 The Federal Judicial Center―the research agency created by Congress to promote improvements in judicial administration in the federal courts―has attempted to fill this void by periodically issuing extensive monographs on the case-management practices of the federal appellate courts.

7 At the time of this Article'

s writing, however, the last such effort was more than a decade ago;

8 the practices have changed considerably in the interim.

9 Moreover, a thorough discussion of case management requires not only a descriptive account, but also an analytical account of why courts operate the way they do and a normative account of whether these differences in operation can be justified. This Article, therefore, begins a long-overdue descriptive, analytical, and normative discussion about circuit case-management practices. To fill the void created by the absence of a current compendium of court practices, I provide a general account of the practices of five circuits. As these practices are rarely written down or publicly available,

10 this Article reports and explores a new dataset William M. Richman &

William L. Reynolds, Elitism, Expediency, and the New Certiorari: Requiem for the Learned Hand Tradition,

81 CORNELL L. REV.

273 (1996) (considering the impact of increased caseloads on the practices of the federal appellate courts). Finally, case- management practices have also been examined at the district court level. See, e.g., Judith Resnik, Managerial Judges,

96 HARV. L. REV. 374,

378 (1982) (exploring the extent to which district judges have become managers of their dockets). 6. As one judge said, when it comes to case management, the courts of appeals are very balkanized ;

judges often don'

t know what is going on in other circuits. Interview with a Judge on the U.S. Court of Appeals for the 4th Circuit (Oct. 18, 2010);

see also Interviews with a Judge on the U.S. Court of Appeals for the 2d Circuit (June 7,

2010 &

Jan. 4, 2011) [hereinafter Interviews with a Judge on the U.S. Court of Appeals for the 2d Circuit (June 7,

2010 &

Jan. 4, 2011)];

Interviews with a Judge on the U.S. Court of Appeals for the 2d Circuit (Mar. 26,

2010 &

Apr. 1, 2011) [hereinafter Interviews with a Judge on the U.S. Court of Appeals for the 2d Circuit (Mar. 26,

2010 &

Apr. 1, 2011)]. 7. See JUDITH A. MCKENNA, LAURAL L. HOOPER &

MARY CLARK, FED. JUDICIAL CTR., CASE MANAGEMENT PROCEDURES IN THE FEDERAL COURTS OF APPEALS, at xiCxii (2000) (describing the information on court practices gathered by the Federal Judicial Center for the

2000 monograph and earlier reports). 8. Id. 9. For example, in 2000, the Second Circuit had not yet created the Non-Argument Calendar―a submission-only track it now uses in approximately