Legal Affairs has hosted a debate this week about the pros and cons of splitting up the Ninth Circuit. The debate raises an interesting question: why is it that an unusually high number of Ninth Circuit decisions can be characterized as outliers? I am interested less in the occasional high-profile opinions than in the run-of-the-mill cases. In my experience, at least, it is not uncommon to research a legal issue and find cases from several circuits all holding one way, and then a Ninth Circuit decision going the other way. Why is that? Proponents of dividing the Ninth Circuit often point to the court's size, but I have a pet theory: the problem with the Ninth Circuit isn't so much its size as its bench memos.

  First, a bit of background. The usual practice on the Court of Appeals is for each of the three judges on an appellate panel to task one of his or her law clerks to author a bench memo for each case. (A bench memo is a memorandum from a clerk to a judge explaining the facts of the case, the lower court decision, and the relevant precedents, as well as recommending a rationale for resolving the appeal.) Some judges do not require formal bench memos, but most task their law clerks with taking an independent look at the record and the law of each case. Judges don't follow bench memos blindly, of course. But because many appellate cases are poorly briefed by the litigants, a law clerk's memo can have a significant influence on how a judge looks at the case. In most circuits, the practice of each judge assigning a clerk to write a bench memo means that by the time of oral argument, three different sets of judges and clerks have taken the case apart and put it back together.

  My understanding is that the Ninth Circuit works a bit differently. When a Ninth Circuit panel is scheduled to hear a case, one chambers is assigned the task of writing a single bench memo that is shared with the other two judges and their clerks. It's a time-saving device; a single clerk does the work, freeing up the other chambers to work on other matters. While the other judges on the panel are free to ignore the shared memo, or to require their clerks to write separate memos, in many cases that one bench memo sets the tone for what the panel is likely to do with the case.

  My pet theory is that the Ninth Circuit's bench memo practice explains some of its quirky opinions. When only one chambers takes a ground-up view of a particular case, the other two chambers are less likely to notice when the bench memo is missing something important. In a run-of-the-mill case, the common memo lets other chambers be a bit less careful about researching the case. Being a bit less careful, they are less well equipped to point out a flaw in the memo's reasoning or possible inconsistency with other cases. If nothing in the memo jumps out as clearly incorrect and the judges do not disagree sharply on the outcome of the case, no one on the panel will notice if the bench memo is a bit off. The judge whose chambers generated the memo is more likely than not to be assigned the opinion, and the resulting opinion is likely to reflect a good chunk of the initial bench memo.

  I don't want to overstate the case. The Ninth Circuit's bench memo practice is probably only one factor among several in explaining its tendency to generate somewhat quirky rulings. Many Ninth Circuit opinions are excellent, and I am sure many Ninth Circuit judges do not defer to memos from other chambers. At the same time, my guess is that the Ninth Circuit's bench memo practice has at least some role to play in generating some of the Circuit's more idiosyncratic rulings.