The Obsolescence of the United States Courts of Appeals: Roscoe Pound's Structural Solution

Abstract

This article examines the problems associated with the federal courts of appeals that are preventing the courts from fulfilling the purpose for which they were designed: providing access to the larger institution of federal judicial power. The problems identified include an increase in caseload, the limited marginal value of decisions due to the transitory and illusory substantive law of the circuit, and the preoccupation with authoring opinions with such limited value. The article devotes much of its attention to Roscoe Pound's structural solution for improving judicial administration. Pound argues for restraining the right of appeal to the court of appeals. The article then examines the components of this structural solution, including the consolidation of the appeal with a motion for a new trial through oral proceedings. Such a one-review system would thereby eliminate the need to appeal to the federal circuit, while still protecting the litigant's right to adequate review.