Judicial Triage: Reflections on the Debate over Unpublished Opinions
The explosion in the caseload of the federal judiciary has forced judges on the circuit courts of appeal increasingly to turn to shortcuts. These shortcuts include an expansion in the role of judicial assistants, disposing a large number of cases through short-form unpublished opinions (to which citation is restricted), and granting oral argument in fewer cases. The end result, as the papers in the 2005 Washington & Lee Law Review Symposium detail, is a two track system of justice - that is, a system of judicial triage - where one set of cases gets full consideration by an Article III panel and another set gets delegated to consideration by judicial assistants, with what appears to be minimal supervision by Article III judges. Our contribution to the Law Review Symposium seeks to point out three gaps in extant discussion. First, there is inadequate consideration of second order effects - that is, how lawyers alter their litigation strategies in response to the dual track system, and what rule of law consequences may attach to those strategic decisions. Second, there is the matter of disclosing the role played by judicial assistants. If judges are delegating substantial responsibility for resolving cases on the secondary track to their assistants, shouldn't the public know who these assistants are, which cases they have worked on, and what role they have played in the case's disposition? Third, there is the matter of structural reform. There has been resistance to proposals to expand the judiciary, especially from prominent members of the judiciary itself. As an alternative, consideration should be given to providing the circuit courts assistance from a set of non-Article III judges analogous to the magistrate judges on the district court. Surely that would be an improvement over the current system where circuit courts acknowledge that they have delegated responsibility for the secondary track cases to judicial assistants, but no one knows who these assistants are and what levels of expertise they bring to the process of resolving appellate cases.