Foreword: The Evolution of the Eleventh Circuit Court of Appeals: A New Era of Diversity on the Bench

BY HON. URSULA UNGARO, 69 U. Miami L. Rev. 929 (2015).

Foreword: From a historical perspective, 2014 was a pivotal year for the youngest circuit court in the nation. Within a four-month period, three new judges were confirmed and sworn in to serve on the Eleventh Circuit—all having clerked for distinguished Eleventh Circuit judges and all of them women. Judge Robin S. Rosenbaum, a former U.S. District Judge, U.S. Magistrate Judge, and Assistant U.S. Attorney in the Southern District of Florida, was elevated to the seat left vacant by Judge Rosemary Barkett. Judge Julie E. Carnes, a former U.S. District Judge and Assistant U.S. Attorney in the Northern District of Georgia, assumed the seat vacated by now Senior Judge James Edmondson. And Judge Jill A. Pryor, formerly a litigation partner at the Atlanta-based law firm of Bondurant, Mixson & Elmore, holds the seat left vacant by Judge Stanley Birch. This dramatic turnover of a quarter of the court’s authorized judgeships transformed the Eleventh Circuit into one of the most gender-balanced federal appellate courts in the country, with five active female judges to the court’s six active male judges.
There is no doubt that the new judges will enjoy long careers in which they will have ample opportunity to influence the development of the law of the circuit. More immediately, however, their confirmations provide the court with much needed relief. Traditionally, the Eleventh Circuit has been among the busiest circuits, annually shouldering over 500 appeals per judgeship. By December 2013, however, the court had four judicial vacancies and found itself unable to staff its panels with at least two Eleventh Circuit judges. This compelled Chief Judge Carnes to declare a judicial emergency under 28 U.S.C. § 46(b). On October 17, 2014, following the confirmations of the new judges, Chief Judge

Carnes issued General Order 42, vacating the emergency designation. With the confirmation of the new judges, there are now eleven active judges. But the Eleventh Circuit actually has twelve authorized judgeships, the same number as when it was first created. While twelve is a small number in relation to the population now served, and the judges theoretically could request additional judgeships under the judiciary’s own guidelines, Congress has declined to authorize any additional appellate judgeships since 1990. Even if it were inclined to do so, the Eleventh Circuit judges likely would not seek additional positions; they have consistently voiced their opposition to expansion of the court, citing the efficiency, collegiality, coherence, and predictability in the development of law that come with a smaller court.

In 2014, the merit of those values was evident. Incredibly, in 2014, 6,087 appeals were filed and 6,239 appeals were terminated. Though hindered by four judicial vacancies for the greater part of the year, the court terminated 3,796 appeals on the merits and 356 through written decisions, more than any other circuit on both an absolute and per judgeship basis. Further, despite terminating more appeals per judgeship than any other circuit, the court was able to maintain the speedy administration of justice, ranking fifth among the twelve circuits in median case turnover. This productivity, notable in and of itself in light of the judicial vacancies, is more impressive considering the breadth and importance of the issues considered.

As one might imagine, the court considered an array of substantive and procedural issues in 2014. While the court did not issue any blockbuster opinion matching the likes of Bush v. Gore or that striking down the Affordable Care Act as unconstitutional, it did consider a range of issues of first impression, including the scope of medical malpractice liability on the high seas and the constitutionality of enforcing “no loitering” signs posted by private individuals. Moreover, the addition of the three female judges has ushered in a new era of diversity on the court, which is likely to impact how the court approaches the issues presented to it, particularly social issues.

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The articles in this year’s Eleventh Circuit Issue of the University of Miami Law Review, authored by three practitioners and one academic, highlight several other notable decisions and their possible implications.

Assistant U.S. Attorney Jonathan Colan provides a nuanced and comprehensive account of the ways in which the Eleventh Circuit has applied 18 U.S.C. § 3742(e)’s “due deference” standard in reviewing district courts’ application of the U.S. Sentencing Guidelines. Litigators Erica Rutner and Lara Bach endeavor to tackle Daubert as it relates to the reliability of expert testimony on general causation in products liability cases. Specifically, they explain and compare several methodologies on which experts typically rely in forming general causation opinions and describe the Eleventh Circuit’s treatment of these various methodologies. Additionally, lest members of the Real Estate Bar Association feel neglected, Professor Tanya Marsh examines Florida law as it relates to the enforceability of exclusive use covenants created in retail lease agreements and how courts determine whether such covenants run with the land. Professor Marsh also explains why exclusive use covenants are ubiquitous in retail leases and discusses the possible remedies for breaches of such covenants. Finally, this year’s Eleventh Circuit Issue benefits from student notes broaching a range of topics, from medical malpractice liability of Florida Accountable Care Organizations to the enforceability of mandatory arbitration provisions contained in fraudulently induced contracts.

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Once a year since 2008, the University of Miami Law Review publishes an issue dedicated to the law of the Eleventh Circuit. Its purpose is to acquaint legal professionals—scholars, practitioners, and judges—with current developments in Eleventh Circuit law and to stimulate interest in the difficult issues confronting the court and the analytical processes it employs to resolve them. While this Issue reaches publication at a time when the Eleventh Circuit is in transition and the impact of its newest judges remains to be seen, it opens a window to the exceptionally wide range of issues the court typically is called upon to decide and the rigor and thoughtfulness with which the judges have approached them. . . . Full Article.

Recommended Citation: Hon. Ursula Ungaro, Foreword: The Evolution of the Eleventh Circuit Court of Appeals: A New Era of Diversity on the Bench, 69 U. Miami L. Rev. 929 (2015).

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