The Federal Courts: Challenge and Reform, Revised Edition / Edition 2

by Richard A. Posner

Overview

The federal courts are the world’s most powerful judiciary and a vital element of the American political system. In recent decades, these courts have experienced unprecedented growth in caseload and personnel. Many judges and lawyers believe that a “crisis in quantity” is imperiling the ability of the federal judiciary to perform its historic function of administering justice fairly and expeditiously.

In a substantially revised edition of his widely acclaimed 1985 book The Federal Courts: Crisis and Reform, Chief Judge Richard A. Posner of the U.S. Court of Appeals for the Seventh Circuit provides a comprehensive evaluation of the federal judiciary and a detailed program of judicial reform. Drawing on economic and political theory as well as on legal analysis and his own extensive judicial experience, Posner sketches the history of the federal courts, describes the contemporary institution, appraises the concerns that have been expressed with the courts’ performance, and presents a variety of proposals for both short-term and fundamental reform. In contrast to some of the direr prophecies of observers of the federal courts, Posner emphasizes the success of these courts in adapting to steep caseload growth with minimum sacrifice in quality.

Although the book ranges over a variety of traditional topics in federal jurisdiction, the focus is steady on federal judicial administration conceived of as an interdisciplinary approach emphasizing system rather than doctrine, statistics rather than impressions, and caseload rather than cases. Like the earlier edition, this book promises to be a landmark in the empirical study of judicial administration.

Product Details

ISBN-13:	9780674296275
Publisher:	Harvard University Press
Publication date:	09/15/1999
Edition description:	Revised Edition
Pages:	430
Product dimensions:	6.12(w) x 9.25(h) x 1.00(d)
Lexile:	1550L (what's this?)

About the Author

Richard A. Posner retired as a judge of the United States Court of Appeals for the Seventh Circuit in 2017. He was previously a senior lecturer at the University of Chicago Law School.

Table of Contents

Preface

The Institution

The Organization of the Federal Courts

The basic structure.

The judges.

The state courts compared.

The Jurisdiction of the Federal Courts

The Challenge

The Growth of the Caseload

Caseload ... versus workload.

Caseload and workload in the Supreme Court.

The Chicken Little question.

Why the Caseload Has Grown So

Models of caseload growth.

The district courts.

The courts of appeals.

The Supreme Court.

Consequences: The System Expands ...

More judges, working harder.

The rise of the law clerk.

...And Is Streamlined

Curtailment of oral argument.

Nonpublication of opinions.

The standard of review, the trend toward "ruledness," summariness.

Sanctions.

Incremental Reform

Palliatives

Upping the ante.

Limiting or abolishing diversity jurisdiction.

Better management.

Alternative dispute resolution.

The reform of the bar.

Specialized Courts

Specialized Article III courts.

Rethinking administrative review.

Fundamental Reform

The Role of Federal Courts in a Federal System

The optimal scope of federal jurisdiction.

Specific caseload implications.

Federal Judicial Self-Restraint

Principled adjudication.

The meaning and consequences of judicial activism and self-restraint.

The restraint ratchet and other extensions.

The Federal Judicial Craft

District judges.

The institutional responsibilities of federal appellate judges.

Rule versus standard again.

Stare decisis.

Appendix: Supplementary Tables

Index

Editorial Reviews

[T]he book provides a comprehensive evaluation of the federal judiciary. While Posner raises serious concerns about the burgeoning caseload in federal appellate courts, he also carefully distinguishes the caseload from the workload...Posner's thought-provoking proposals are worth consideration. Anyone concerned with the judicial administration of appellate courts should read this book.

State Bar of Michigan Appellate Practice Section Newsletter - Mary Massaron Ross

In a revised and substantially improved edition of his classic 1985 book, The Federal Courts: Crisis and Reform, Posner, chief judge of the U.S. Court of Appeals for the Seventh Circuit, provides an insightful and distinctive examination of the problems and challenges that have arisen from the unprecedented growth in caseload in federal courts. He shows that this growth has had many consequences for the structure and operation of the federal judiciary. Using an economic approach to litigation to assess the costs and benefits of reforming the federal judiciary, Posner raises critical objections to simple palliatives for judicial reform, such as specialized courts or limiting or abolishing diversity jurisdiction. Instead, he proposes fundamental reforms for the role of federal courts within our federal system. Posner's thoughtful analysis is highly recommended for academic and law libraries.-Steven Puro, St. Louis Univ.

Library Journal

Posner approaches the topic of the federal courts with an extraordinarily impressive set of credentials which provide him insights into his subject both from within and outside the judicial system. Prior to beginning his service as U.S. appellate judge on the 7th Circuit, Posner held important governmental administrative positions as well as serving as law clerk to Justice William Brennan. While teaching part time at the University of Chicago Law School he has managed to write more than 250 journal articles and book reviews. Thus when this scholar and jurist comments on the current state of the federal courts, he is doing so as a sort of "participant-observer." The readership audience for THE FEDERAL COURTS is fairly diverse: lawyers in general (but particularly federal court practitioners), judicial reformers; public law scholars in political science economics and psychology; legislators; and citizens who consider themselves to be members of the judicial system’s attentive public. While his writing style is sophisticated, Posner does a good job of avoiding excessive judicial argot and of relegating the finer points of his arguments to footnotes. In general the author seems to have two general themes for the text. The first is to describe and evaluate the current state of the federal judicial machinery in terms of its problems, strengths, weaknesses, and potential; a second is to provide and evaluate numerous proposals that have been set forth for reforming and improving the working of the U.S. judiciary. Sources for Poser’s work stem from three general realms: (1) theoretical works from the fields of economics, law, and political science; (2) facts, figures, and statistics complied by various private and public agencies, e.g., the Administrative Office of the U.S. Court; and (3) Posner’s keen and vast insights that stem from his day-to-day practice as an appellate court jurist. The Posner book is divided into four main segments. Part I is more of a nuts and bolts look at the contemporary state of the federal judiciary. Besides reviewing some basic factual information about how the courts are structured and what are the duties of each level, Poser also comments on how the federal judiciary of today differs from that just a generation ago. For example, he notes that more and more federal jurists are coming to the bench with prior judicial experience (much like the European style), and he notes with equal approval that the bench is becoming more and more diverse in terms of gender and ethnicity. As with all chapters, Posner can’t resist making suggestions for reform so that, for example, in discussing judicial salaries, he recommends that judges be given automatic cost-of-living raises and that salaries vary with regional living costs. Part II of the books is entitled "The Challenge," and here Posner confronts perhaps the most obvious and confounding phenomenon confronting judicial administration in recent decades -- the huge growth in the federal caseload since the 1950’s. Denying that the courts are in a current state of crisis, Posner, draws on both his credentials as a practitioner and a theorist. Among other things, he contends that in real terms, the federal "caseload growth is not inexorable. It has leveled off in the district courts and has been reversed ... in the Supreme Court. Appeals have continued to increase in the federal courts of appeals, but those courts have managed to accommodate them with relatively little fuss. This may be because the average difficulty of appeals has been falling as a consequence of the declining fraction of cases resolved by means or a trial, or because the composition of the docket has shifted toward easier cases." (pp. 84-85) In these chapters Posner also cautions against easy explanations for the growth in caseload. For example, he argues that increases in court filings are much more a function of the costs (both financial and psychological) of filing a lawsuit than of such simplistic factors as increases in population or wealth. One key chapter in Part II is entitled "...And Is Streamlined" which explores in part the topic of nonpublication of appellate court opinions. This subject is important for both attorneys in the practice and for judicial behavior researchers. For the former, unpublished opinions are currently a sort of judicial bean bag: judges are urged not to publish nonprecedential opinions and yet few can agree about which opinions will serve as future precedents and which are merely "routine." Unpublished opinions are still part of the corpus juris, but lawyers are not clear about when and how to cite them in court. Judicial behavioralists who publish articles based on published court opinions are open to the criticism that many important cases are found outside the covers of the federal reporters and that therefore studies based only on published opinions are suspect. Poser’s commentary on this topic is helpful and insightful for both the legal profession and for judicial scholars who measure judicial behavior using published court decisions. For example, Poser provides evidence that many important, precedent-making decisions do go unpublished, but he also argues that this varies with the subject matter of the case. A third area of focus is that of "Incremental Reform" as outlined by Poser. Here the author discusses the pros and cons of five commonly suggested methods for improving the quality of the federal judicial "output," such as limiting or abolishing diversity jurisdiction and encouraging alternative dispute resolution. Again, a key finding revels the sophistication of Posner’s analysis: "A combination of two-way fee shifting and no contingent fees is more attractive than either measure by itself, which may explain why it is the combination that most of the world’s legal systems have chosen. The possible effect of two-way fee shifting in increasing the amount of litigation is sure to be offset by forbidding contingent fees, but the shifting buffers the effect of forbidding them by providing an alternative method of financing solid cases." (p. 243) In a second chapter in Part III Posner expresses reservations against over-specialization in appellate courts, arguing inter alia that judicial specialization could reduce the "cross-pollination of legal ideas" which Posner believes is important for quality judicial decision making. In a final collection of three chapters the author explores "Fundamental Reform" of the judicial system , and for the most part he suggests that TRULY fundamental reforms are not warranted. For example, to the oft-made suggestion that much federal business should be reallocated to the state courts, Posner retorts that "a rigorous application of the principles of federalism would also dictate the reassigning of some, maybe a great many, cases from state courts to federal courts." (p. 303) In other words, let’s go slow in our attempts at reform and avoid simple-minded "quick fixes." Another admirable quality about Posner’s book is its honestly and frankness. For example, unlike many books written by practitioners, his is by no means a litany about how judges are overworked an underpaid. He argues more than once that judges are for the most part paid quite amply for the services they render and that if judges are working hard now compared with their counterparts in the 1950’s it is primarily because federal jurists of four decades ago were UNDEREMPLOYED. Also, while respectful of his fellow jurists, Poser does not hesitate to point out numerous shortcomings and inefficiencies of those who administer the federal judicial machine. Although parts of THE FEDERAL COURTS can be tedious and occasionally the myriad of charts, tables, and statistics can be a bit numbing, still the text is really very well composed and carries meaningful insights for both legal practitioners and academicians in the public law realms.

Robert A. Carp