July 21, 2007

The New Conservatism

by PG

Cleaning off my bookshelves, I noticed in the October 2005 issue of Engage, "the journal of the Federalist Society's practice groups" (the Harvard Journal of Law & Public Policy being too infrequently published), an article by Ninth Circuit judge Diarmuid F. O'Scannlain proffers his "Ten Reasons Why the Ninth Circuit Should Be Split." Judge O'Scannlain retreaded the article for a Fed Soc presentation at Harvard, where he noted, "Thirty-three of my colleagues on this 47-judge Court, including Chief Judge Schroeder and all past (and future) Chief Judges co-authored a response to my arguments ... I believe that it is split opponents who must now bear the heavy burden of
establishing that the status quo should be maintained... But, my colleagues argue that Congress has never split a circuit contrary to the wishes of that circuit’s judges. Well, there’s a first time for everything."

Anti-majoritarian and putting the burden of argument on those who support the status quo? Say it ain't so!

(O'Scannlain is correct to say that historically, Congress has added and reconfigured the circuits several times. However, I don't think Congress ever has divided a single state between two circuits. Though O'Scannlain never explicitly supports the Hruska Commission's recommendation that California be split, and even says that "maybe California should be a circuit by itself," he also talks about the cultural differences between northern and southern California, and must be aware that the most vocal proponents of a split demand that California be divided.)

The article notes a bill of which I had been unaware, i.e. Sen. Specter's proposal to put all immigration appeals in the Federal Circuit, much as all patent and federal employee appeals are. This is a promising idea, as is the notion of creating an additional Circuit that would have a parallel specialization in federal tax, bankruptcy and perhaps securities or even antitrust appeals. As we already have distinct tax and bankruptcy courts, feeding their appeals into a specialized Circuit strikes me as quite easy and sensible, and certainly tax, bankruptcy and securities cases are so peculiarly statute-based that handing them off to a group of business geek judges and clerks would benefit everyone else. I'm more doubtful about antitrust because of how much is judge-made rather than statutory law.

July 21, 2007 05:36 PM | TrackBack
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