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Abstract

It’s said that middle children are most likely to be forgotten in the chaos of family life. The same could be said of the U.S. Courts of Appeals, which in 2016, mark their 125th anniversary, and which are the middle child of the federal judicial family. As too few people, even academics, know, the courts of appeals were created in 1891 by the Evarts Act, more than a century after the Constitution and the First Judiciary Act. The history of the courts of appeals has accordingly hovered somewhat uneasily next to that of the U.S. Supreme Court and the district courts. Setting aside the rare times when an appellate court strikes down or stays an important national statute or program, our work remains largely below the radar of American public debate. In contrast to our sibling Article III courts, district and Supreme, our intermediate appellate character is stunted in three different ways.

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