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Can Technology Save the 9th Circuit?

By William Vogeler, Esq. on August 24, 2017 2:57 PM

When a judge frames the issue in a case, sometimes it's a hint about which way the hearing is going to go.

"Rebooting the Ninth Circuit: Why Technology Cannot Solve Its Problems" was the titled issue of a hearing before a Senate Judiciary Subcommittee. It was not a good sign for the American Bar Association, which weighed in on the issue.

"Contrary to the conclusory title of your hearing, the ABA believes that technological and procedural innovations have enabled the Ninth Circuit to handle caseloads efficiently and maintain a coherent and consistent body of law," Patricia Lee Refo wrote for the ABA.

So the ultimate question is whether the government will split the court of appeals. It's anybody's guess how this one is going to go.

Technological Changes

At the annual ABA meeting recently, delegates "voted overwhelmingly" in favor of opposing a split in the Ninth Circuit. Historically, the ABA supported splitting the circuit but changed its position based on technological updates.

The ABA made its decision "on the basis that procedural changes and court management innovations allowed the circuit to manage its rising caseload without sacrificing quality or timeliness."

Judge Diarmuid F. O'Scannlain, who gave written testimony to the committee, doesn't see it that way. He said technology cannot save the circuit from its problems because there are too many cases for the judges to handle.

"Restructuring the circuit is the best way to cure the administrative ills affecting my court, an institution that has far exceeded reasonably manageable proportions," he said.

'Sisyphean' Task

O'Scannlain said the judges have a Sisyphean task, being so busy they are "losing the ability to keep track of the legal field in general and our own precedents in particular." He said judges increasingly ask for en banc reviews of their own decisions because they can't keep up with rulings in the circuit.

"This is as embarrassing as it is intolerable," he said. "It is imperative that judges read their court's opinions as -- or preferably before -- they are published to stay abreast of caselaw."

Judge Mary Schroeder said only a few judges want to divide the circuit. She said technology has "enabled all courts to handle cases, emergency motions, and life or death decisions in an informed and collegial way."

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