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At recent hearings on proposals to restructure the Ninth Circuit Court of Appeals, two witnesses (a Ninth Circuit judge and a law professor) expressed some support for a realignment that would divide the state of California between two judicial circuits. This article explores the legal problems that might arise if such a reorganization were to be enacted, and it considers how those problems might be dealt with. It concludes that the problems are far from intractable and that they can be addressed through use or adaptation of familiar mechanisms for avoiding or resolving conflicts between decisions of different courts.

Almost 50 years ago, the Commission on Revision of the Federal Court Appellate System (Hruska Commission) recommended that the two largest federal judicial circuits of that era – the Fifth and the Ninth – should each be divided into two new circuits. The Fifth Circuit was then composed of six states, three on the east and three on the west, with approximately equal caseloads. The Commission recommended a three-three split, and six years later Congress enacted legislation implementing the proposed realignment.

The Ninth Circuit was a tougher nut to crack. The Ninth Circuit is composed of nine states, but one of those states is California. Then as now, California accounted for about two-thirds of the Ninth Circuit’s caseload. And the Commission was adamant in rejecting the idea of putting California in a circuit by itself. “The creation of … a one-state circuit,” the Commission said, “invites the loss of important elements of our federalism.” Among other things, “[t]here is reason to believe that judges from different states reinforce one another’s perceptions that they are judges of a national court.”

Instead, the Commission recommended that Congress divide the Ninth Circuit into two new circuits with the boundaries drawn so that two of the federal judicial districts of California would be placed in a southern circuit (with Arizona and Nevada), and two in a northern circuit (with Hawaii and the northwestern states). Although a bill was introduced in Congress to implement the recommendation, it did not go far. Since then, attention has focused on other proposed realignments, in large part because the idea of dividing California between circuits has generated intense opposition from California’s legal and political community.

The idea has not disappeared from view, however, and for good reason. The Hruska Commission was on sound ground in arguing that a one-state circuit would be at a severe disadvantage in performing the functions of a national appellate court. Indeed, a later study group, the Commission on Structural Alternatives for the Federal Courts of Appeals (White Commission) went further, concluding that three states are “the minimum necessary for units of the intermediate tier of a federal system to serve an appropriate federalizing function.” No realignment that satisfies the White Commission’s criterion would come as close as the Hruska Commission’s proposal to an equal division of caseload between the two new circuits.

The question, then, is whether the concerns underlying opposition to the Hruska Commission proposal justify excluding it from consideration. The detailed analysis in this article, based on a memorandum written for the Commission, suggests that the answer is “No.”

Two classes of cases have loomed large in discussions of the Commission proposal: diversity cases and cases involving challenges to the validity of a California state statute or regulation. With respect to the first, the article finds that notwithstanding the attention paid to diversity cases, dividing California between circuits would have little effect on the litigation of state-law claims. Suits challenging the validity of state laws do present potential problems, but several mechanisms are available to avoid or resolve conflicts between decisions of the northern and southern circuits. These include transfers under 28 U.S.C. § 1404(a) or § 1407 (the multi-district litigation statute) and review by a limited en banc panel similar to the one used by the Ninth Circuit today, but drawn from judges from both of the new circuits.

A recurring theme in the analysis is that none of the conflicts likely to arise in the divided-state situation are unique. A judicial system that can handle the delicate problems raised by federal injunctions against state-court proceedings and the logistical problems raised by multitudinous suits in related antitrust cases should be equal to the task of preserving harmony between two federal appellate courts sitting within one state.