GUEST EDITORIAL-Chicago Lawyer Magazine

    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 court. 
     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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