Abstract:
While Judge Reinhardt agrees with Professor’s Baker’s thesis, that overwhelming caseload increases have inhibited the efficient functioning of the Courts of Appeals, he finds Rationing Justice on Appeal unhelpful in solving the problem. While a fine scholarly work that adequately surveys the problem, it does not provide the sort of bold and innovative proposals necessary to repair the system. Both Reinhardt and Baker agree that the ‘appellate ideal,’ comprising small circuits, oral arguments, and detailed treatment of cases, is collapsing under pressure, but Baker ultimately declines to propose a solution, instead opting to recommend further studies. Reinhardt, to the contrary, opines that only expansion of the judiciary can aid the situation, as other options, such as jurisdiction limiting, are not feasible. In the meantime, the kind of emotional commitment to small circuits espoused by thinkers like Baker remains largely nostalgia.