Arthur D. Hellman

Jumboism and Jurisprudence: The Theory and Practice of Precedent in the Large Appellate Court

“It is our considered conclusion that the Fifth Circuit is geographically too large and that 15 judges is definitely six too many. … Moreover, it is only natural that intracircuit conflicts multiply when there are 15 active judges. … Jumboism has no place in the Federal Court Appellate System.” That was the view of eight judges of the former (six-state) Fifth Circuit in a statement submitted to the Commission on Revision of the Federal Court Appellate System (Hruska Commission) in 1973. Today, the nine-state Ninth Circuit is much larger geographically than the old Fifth Circuit. And when the Ninth Circuit Court of Appeals is at full strength, it has 29 active judges, almost double the number in the old Fifth Circuit. The Ninth Circuit is thus the paradigm of the “jumboism” that the Fifth Circuit judges warned against. But have intracircuit conflicts multiplied? Is the law of the circuit in disarray? This article addresses the question whether the Ninth Circuit Court of Appeals has succeeded in maintaining consistency in the law of the circuit. The article is divided into four sections. Section I sets forth the underlying premises and describes the procedures adopted by the Ninth Circuit to avoid inconsistencies among panel decisions. Section II develops a theory of intracircuit conflict through extrapolation from basic principles of precedent in a common law system. Section III reports the results of an empirical study applying the theory to measure the extent of inconsistency in the Ninth Circuit. Section IV considers the implications of the study for the workability of the large circuit and poses questions for further research. The theory consists of three sequential propositions, each of which addresses one of the possible relationships between a particular new decision and existing law in the circuit. First, if losing counsel cannot point to relevant circuit precedents that reach results different from the panel’s result in the case being considered, there is no possibility of conflict or uncertainty of the kind that arouses legitimate concern among judges and lawyers. Second, the cases that offer the greatest potential for conflict are those in which the panel distinguishes a circuit precedent that losing counsel has reasonably relied on as requiring (not simply supporting) a different result. Third, to the extent that the distinctions drawn by the later panel are clear and cogent, the potential for disarray is not likely to be realized. To estimate the extent of inconsistency in the Ninth Circuit, I applied this theory to two random samples of published opinions of the Ninth Circuit Court of Appeals, one from 1983, the other from 1986. The sample encompassed more than 20% of the court’s precedential output in the two years. For each case that was not excluded at the first step of the analysis, I attempted to trace the subsequent history of the common legal issue to determine if the coexistence of arguably inconsistent decisions had created confusion or uncertainty. Indicia of confusion were apparent inconsistencies in the later decisions, disagreement within panels, disagreement between appellate panels and district courts, and frequent litigation. If one or more of these indicia were present, I examined the cases further to determine the extent to which the confusion was produced by the coexistence of the apparently conflicting decisions rather than by other factors. I was particularly interested in searching for conflicts created by a panels outright failure to mention relevant precedents that reached contrary results. The research was completed in 1988. Based on this research, it does not appear that intracircuit inconsistency is as much of a problem as many lawyers think. Head-on conflicts are quite rare. Disarray caused by the existence of a large number of precedents pointing in different directions is more common, but seldom involves issues that directly affect primary activity.