It is not news to any practitioner
that federal court caseloads have been swollen beyond all recognition
in the last several years.
This problem has numerous causes,
only one of which is the oft-cited increasing litigiousness of American
society, especially as the economic pie shrinks. Recent years
have also seen the creation of several new federal causes of action.
As the public appetite for strong anti-crime measures increases, not
only are new federal crimes created, but the “federal presence” is
made apparent in areas traditionally left to the states for prosecution,
such as drugs and firearms violations. In addition, new areas
requiring judicial decision-making have proliferated, such as Rule
11, new ethics and civility codes, and the sentencing guidelines.
What is the result of this
exponential increase in federal court caseloads? Most obviously,
given the federal speedy trial act for criminal cases, the trials
of civil cases have been swamped. In many federal districts,
a civil case has not been tried in years.
Federal judges are over-stressed
and are rushed in making decisions. Moreover, the pressure on
judges to settle civil cases too often overwhelms the need to do justice
between the parties. The emphasis in case management becomes
efficiency at the expense of accuracy. Burdens placed upon litigants
are in large part designed to make the continued maintenance of a
civil case unpalatable.
Judges too often feel compelled
to impose heavy-handed and unrealistic discovery schedules, with discovery
cutoffs that bear no relation to the availability of a real trial
date and that are largely designed to raise the transaction costs
so high that the parties are forced into a bad settlement.
Equally sad, the caseload pressures
inexorably draw judges into weeding out as many cases as possible
on technical or procedural grounds. Courts, as well as clerks’
offices, have developed hair-trigger waiver rules and have been quick
to find fatal procedural defects. This has in turn raised the
stress levels of lawyers and litigants and has increased the percentage
of cases not decided on their merits.
The cumulative effects of these
docket pressures and the reaction of the federal courts to them threaten
to dim the luster of the federal courts as a forum that produces informed
and accurate resolutions of truly consequential disputes.
What has been the response
of our political leaders to this problem? In this year’s presidential
campaign alone, candidates advocated making federal crimes out of
car jackings and the crossing of state lines with the intent to evade
the payment of child support. Congress has proposed creating
a civil remedy in federal court for “acts of violence relating to
gender.” These proposals are put forth invoking the sacred name
of the federal courts, as if merely subjecting conduct to federal
court scrutiny, as opposed to the state courts, is somehow a solution
to a substantive problem facing society.
Our political leadership also
has permitted numerous vacancies for the district court to remain
unfilled for lengthy periods of time, while interparty or intraparty
political disputes are fought.
It is time that lawyers, litigants,
judges, and political leaders all recognize this problem and deal
responsibly with it.
Obviously, not every problem
of society can be solved by creating a federal cause of action or
by filing a federal lawsuit. Our political leaders must resist
the creation of new federal causes of action and yes, the creation
of new federal crimes, as a pat solution to social problems.
Indeed, remaking a state crime
into a federal crime, in view of the docket pressures, generally makes
the target conduct less severely punished, not more severely punished.
As our society evolves, there will be, to be sure, new areas of concern
that do lend themselves to a federal judicial solution. The
recently enacted Americans With Disabilities Act is one example that
comes to mind. But whenever Congress and the President create
a new federal cause of action, some consideration should be given
to how, given the federal courts’ docket, that new cause of action
will be enforced.
Perhaps a “court impact analysis”
ought to be performed, similar to budget and environmental impact
reviews, when new federal causes of action are considered. In
the criminal area, we need to consider what we really gain by prosecuting
routine drug cases, firearms cases, and even bank robbery cases, in
federal court. Local authorities are better equipped by resources
and training to react to these street crimes.
The federal criminal system
with its nationwide process and resources should devote itself to
what it can do best. Narcotics crimes involving importations
or international or interstate aspects can be prosecuted best in federal
Similarly, political and business
corruption cases that require the unique resources of the federal
government for investigation -such as wiretaps, witness protection,
and other specialized expertise - also lend themselves to federal
court prosecution. But there is no reason to believe that making
conduct a federal offense or prosecuting conduct as a federal offense
will result in more meaningful deterrence.
Similarly, we need to reduce
the number of decisions that a federal judge must make in each case.
Proposals presently being tested in the Eastern District of Wisconsin
include automatic protective orders in civil cases, automatic basic
discovery, and automatic settlement conferences. Similar creative
proposals and experiments should be tried.
Perhaps federal courts should
assign some judges only to civil cases and others only to criminal
cases. Perhaps the role of the federal Magistrate Judge can
be expanded to include more hands-on pretrial supervision of civil
cases as a matter of course. The bench and the bar should not
be timid about such experiments.
The federal judiciary has enjoyed
a special place in the history of American Jurisprudence. We
are on the verge of killing this golden goose. We, as practitioners,
should make sure that does not happen.
William R. Coulson is a past president of the Chicago
Chapter of the Federal Bar Association.
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