Solves judicial resources

A third way to reduce the federal workload is to reduce the scope of federal jurisdiction by eliminating unimportant categories of cases so that judges can devote more time to the cases that remain. The strong opposition to even the most modest recommendations of the Federal Courts Study Committee19 (with the consequent likelihood that only insignificant, technical recommendations will be enacted20) underscores the difficulty with this approach. There may be widespread support for reducing the scope of federal jurisdiction, but there are numerous ways to do this and strong opposition to each one. Because interest groups with narrow, focused demands can often overcome more diffuse support for broad reform,21 none of these solutions has been adopted. Hence, supporters of diversity jurisdiction argue that this jurisdiction is essential and suggest that Congress reduce the federal docket by repealing rights like those conferred in the Federal Employer's Liability Act22 and the Jones Act.23 Lawyers for railroad employees and seamen (and their unions) say that these rights are too important to abandon and recommend instead that Congress concentrate on reducing frivolous prisoner petitions. Civil rights advocates respond that prisoners must have access to federal courts and counsel Congress to eliminate diversity. And so the buck gets passed around and around; in the end nothing is done.24

*78 In any event, even if Congress could agree on what cases to remove from the federal docket, this would provide only a short-term solution. The federal docket necessarily evolves with the nation's substantive goals, and the business of the federal government changes too fast and is too controversial for federal jurisdiction to remain stable. No one foresaw in the 1850s that federal courts would be needed to protect myriad new federal rights by the end of the 1860s. No one thought in the years before the eighteenth amendment that a huge investment of federal judicial resources would be necessary to enforce Prohibition, just as no one foresaw when the amendment was ratified how short its life would be and how quickly this business would disappear. Of more recent vintage, I doubt that many people in the mid-1950s anticipated how important civil rights cases would become. And no one would have predicted as recently as five years ago that we would begin a “war on drugs” requiring a massive investment of federal judicial resources (just as no one can predict how long this demand will last). Our national priorities change so quickly that about the only thing of which we can be sure is that tomorrow's docket will look very different from today's. New laws will be enacted; unforeseen problems will arise; new accommodations will be required.

The lesson is not that the situation in the federal courts is hopeless. On the contrary, after more than a quarter century, we may finally have reached the point where Congress will adopt some combination of these three approaches—informal procedures, additional judgeships, and reduced jurisdiction—to relieve the caseload burden. But the forces that delayed congressional action for so long will not suddenly disappear. If any lesson is to be drawn from the analysis above, it is that the dynamics of judicial reform discourage Congress from acting until problems become serious (something that is true of many other areas as well). Assuming, then, as seems likely, that the federal docket continues to grow and change, we will soon be back in the same position.

We can, however, delay the recurrence of these problems and perhaps reduce their severity by encouraging Congress in making judicial resources available more efficiently. To this end, I propose to establish an agency to assist Congress to make informed decisions about how to structure federal jurisdiction when it enacts new legislation. I make no extravagant claims about the benefits of this proposal. It will not solve all our problems. Pressures will still build as new laws are enacted, old laws are reinterpreted, and other changes affect the amount of litigation. But better planning as we go along may provide modest benefits by deferring these pressures and minimizing the costs to everyone in the meantime.

B. Groping in the Dark: Causes and Effects of Inadequate Planning

There is currently no formal mechanism to assure that judicial resources are utilized efficiently. The closest thing that now exists in Congress is the *79 Office of the Law Revision Counsel in the House of Representatives.25 But while this body's statutory mandate is broad enough to permit it to serve a planning function,26 lack of resources has limited it to the largely ministerial task of keeping the United States Code up to date. As a result, Congress gives little systematic consideration to the impact of new legislation on the federal courts. What planning takes place is done haphazardly in committee, and on those occasions when serious consideration is given to structuring federal jurisdiction, questions of efficiency are seldom in the foreground.27

Entities with some planning responsibilities do exist in both the executive and judicial branches, namely, the Office of Legislative Affairs in the Department of Justice and the Office of Legislative and Public Affairs in the Administrative Office. But these offices lack the resources and expertise to conduct the necessary analyses. What assistance they do provide thus tends to be sporadic and impressionistic when the necessary assistance should be systematic, technical, and comprehensive. Moreover, because these agencies are not part of Congress, they have a limited ability to demand attention and are often treated more like lobbies than helpmates. In fact these offices are lobbies, seeking to advance the particular agendas of the executive and judicial branches (which do not necessarily include making optimal use of judicial resources in implementing a particular substantive law28).

The absence of an agency capable of, and responsible for, evaluating judicial jurisdiction under proposed legislation and disseminating the relevant information to members of Congress occasionally leads to spectacular failures, such as the National Childhood Vaccine Injury Act of 1986.29 This legislation gave claimants a right to compensation for illness or death resulting from vaccination. Apparently, no one in Congress considered the need for special arrangements to adjudicate cases arising under the new law; adjudication was left to the district courts. The resulting flood of litigation *80 proved difficult to handle. It took more than a year to secure legislative relief, with Congress eventually shifting a large part of the burden to the Claims Court.30

Most inefficiencies in the use of judicial resources are less dramatic. Some problems, for example, derive from Congress's failure to resolve simple housekeeping matters, such as whether a law applies retroactively or confers a private cause of action.31 These statutory gaps create uncertainty and foster needless litigation. Other problems have more fundamental causes. Congress may vest concurrent jurisdiction in several courts, creating forum shopping opportunities that generate conflicting decisions and additional litigation.32 Or Congress may make an agency's decisions reviewable in both the district courts and the courts of appeals when a single tier of Article III review would suffice.33 Or Congress may fail to anticipate the amount or nature of litigation likely to arise under particular legislation and so fail to provide adequate judicial resources. Standing alone, the consequences of such failures are seldom striking enough to elicit the same quick response as the Vaccine Injury Act. But the cumulative effect of these incremental inefficiencies may be great and may needlessly exacerbate federal caseload problems.