Courts are barely managing their dockets but increased litigation forces resource trade-offs

For the past several decades, appellate judges and court scholars have struggled with the existence of, and potential responses to, an overwhelming predicament: the growth of the federal appellate caseload has far outpaced the growth of the federal appellate judiciary. 1 The average annual filings per active judgeship stood at 73 in1950, 2 jumped to 137 by 1978, 3 and hovers around 330 today 4 —even though the number of judgeships has nearly tripled in that time. 5 No wonder then that the phrase “crisis in volume” was coined, 6 and is now commonly used, 7 to describe the workload of the federal courts of appeals. To cope with their expanding caseload, appellate courts have adopted a wide array of case management techniques. 8 These include holding oral argument 9 and publishing opinions in a smaller percent- age of cases, 10 and having staff attorneys prepare dispositions in a larger percentage of cases. 11 Although specific practices vary considerably from circuit to circuit, 12 their animating rationale is the same: to keep the courts running, some sets of cases must receive considerably less judicial attention than others. 13