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Book casts a light on the ‘hidden judiciary’

Professors examine role of staff law clerks at federal appellate courts

Fifty years in the making, a “hidden judiciary” has taken root and flourished within the federal appellate system, William L. Reynolds says.

Professor William L. Reynolds poses with the book he co-authored, ‘Injustice on Appeal: The United States Courts of Appeals in Crisis,’ at the University of Maryland Francis King Carey School of Law.

And for more than half of that time, the University of Maryland Francis King Carey School of Law professor has been writing about it.

Now, Reynolds and his long-time co-writer (and former student) William M. Richman have published their fifth book on the subject, “Injustice on Appeal: The United States Courts of Appeals in Crisis.”

The 256-page book focuses on the rise in the number and power of staff law clerks, which started as a way to deal with increased caseloads stemming in part from civil rights litigation and changes to criminal procedure.

As the workload increased, few new judgeships were created — none since 1983, Reynolds said.

“The number is just static and the caseload has increased tremendously,” he said.

Instead, the courts hired more clerks and expanded their role.

“It’s is very difficult to determine how many staff law clerks there are and how they are trained and how they are supervised and evaluated,” Reynolds said.

In the past, judges more often wrote opinions themselves with less help from law clerks, Reynolds said. Today, many opinions are written by staff law clerks with little judge supervision, he said.

“These are national problems and should be addressed at a national level,” said Reynolds, who has been teaching at the law school since 1971 and also serves on The Daily Record’s Editorial Advisory Board.

About 7/8 of the opinions issued by the U.S. Circuit Courts of Appeals are unpublished, Reynolds said, and many of them are short — sometimes only two paragraphs.

“A lot of opinions (in the past) had precedential value,” Reynolds said. “That is no longer there.”

Reynolds said all of this can lead to a bias within the appellate court system, with high-profile security cases getting the judges’ full attention while smaller cases, often dealing with poorer clients, are given less judicial consideration.

Reynolds and Richman, now a professor at the University of Toledo College of Law, wrote a flurry of articles on the topic between 1978 and 1984, took a break, then wrote another in 1996.

They started writing “Injustice” in 2007 in “fits and starts,” Reynolds said. It was published in December by Oxford University Press.

“We just decided it was time to come back to the topic,” Reynolds said. “There has been some interesting stuff written by other professors and judges about the process that we decided to take another look at the field.”

The issue, Reynolds said, is relatively unknown, even within the legal community.

“Even if you ask the most experienced appellate attorneys, they will not know there is a problem, [or] the extent of the problem,” Reynolds said.

Because he and Richman have written together so often, Reynolds said, the writing process was simple. Often one would send half a chapter to the other, who would edit it, and vice versa.

“We know how each other writes,” Reynolds said. “It’s like identical twins. We know what the other is thinking before the other thinks it.”

At the end of the book, the two go through an analysis of possible solutions to the appellate court procedural problem.

They recommend the creation of additional judgeships, more transparency regarding the staff law clerks and an alternative system with different courts dealing with a specific subject matter.

“Part of it is just pure scholarly interest,” Reynolds said. “Here’s a problem, how did it start? We’re also very upset with this two-tier system of justice.”