Bloodless Coup

I also intuitively concur, at least generally, with Kerr's thesis. I can add as well a less quantifiable factor that may amplify precisely the problem he describes: clerks to the court of appeals, especially to the Ninth Circuit, are among the best and brightest young law graduates, which necessarily comes with a great deal of ego as well as a great deal of confidence and, often, some ideological axe to grind (many clerks are contemplating careers in academe, and thus are proficient proto-intellectuals learning how to stake out and defend tendentious positions). Without some kind of check on these factors (say that provided by the redundancy of multiple chambers reviewing the same record and legal issues), what you end up with is someone who can think circles around legal issues, who can write very persuasively into a familiar formula, who has very strong opinions on a great many issues, doing work that isn't being checked as thoroughly as it might be.

I didn't know about the Ninth Circuit's practice, but it's certainly interesting to ponder.

there's a flipside, however. granted, courts of appeals grind out a lot of decisions, and granted every layer of redundancy works as a check on foolish mistakes in an environment of haste.

intuitively, however, it seems that with each additional layer of redundancy there comes a diminishing return. accordingly, one would imagine that at some threshold of redundancy, the return would dwindle to far too little to warrant it.

to review kerr's synopsis, the system in most, if not all, circuits entails the following (all discussions of process are speculative, supervene on to some extent on kerry's account and my own limited experience (i wrote two pretty fancy bench memos for a judge on the 3d when i was a 2L)):

1. a case is assigned to a panel.
2. in the chambers of each judge on that panel, a clerk is tasked to write a bench memo reviewing the case -- its facts, the relevant law, and possible alternatives for disposition.
3. the consequent bench memo, prepared by a clerk and perhaps reviewed by the other clerks, is submitted to the judge, who often reviews the case with the clerk tasked to do the preliminary work. odds are, an experienced judge will have pointed questions, and will have an excellent eye for flaws of logic and of law.
4. the judge will go into argument, where he will bring his own concerns to the bench, just as the other panel judges, who have themselves engaged in some variations of steps 1.-3. with their staffs, will bring their concerns.
5. at argument, the various concerns so generated will be aired, and the attorneys will attempt to parry these concerns and turn them to their own advantage.
6. the judges will retire to deliberate, again armed with their respective preparatory materials, and will reach a preliminary disposition and assign writing responsibility.
7. the clerk for the judge assigned writing responsibility will be brought up to speed (he'll also have attended oral argument, more often than not, and perhaps sat in during deliberations).

in the ninth, however, steps 1.-3. are conducted by one chambers, probably by one clerk working largely alone, and these results will be transmitted to the other panel judges, who ostensibly will be somewhat hamstrung in their consideration of the case by the limitations of that first clerk and his judge in the framing of the issues. consequently, the story goes, the judges en masse are cabined in their approaches to the case, and thus a less thorough argument is engaged in.

thing is, lawyers are trained to turn the discussion their way, and many lawyers who appear before the courts of appeals are very skilled at doing so. furthermore, even after all of this, an opinion is drafted, circulated, reviewed by clerks and judges in other chambers, revised in many cases, and ultimately turned out only at such time as each judge is adequately satisfied with the product to warrant him affixing his name or alternatively to writing a dissent.

thus, whether in the 3d or the 9th circuit, during the post-bench-memo phase, there are several tiers of review and consideration. furthermore, the lawyers have had an opportunity to turn the discussion away from whatever the bench memo fixed judges' minds on to whatever the attorneys want to see discussed and considered.

i'm not disagreeing that in sum a three-bench-memo circuit will have livelier, more sweeping discussions. but the basic reliance on advocates is relatively unchanged, and my experience is that even overburdened judges have a great deal of integrity and don't cavalierly sign off on opinions that bear their name. it's not that i think, based on the above discussion, that kerry is wrong. it's just that i think his discussion is incomplete, and i'm not as convinced upon further consideration than i was at first blush.