Trade-offs are likely AND occur cross-issue---the courts are stretched thin AND think they’re at risk of overload, so they’ll preemptively scale back in other areas for docket control

Proponents of access to justice advocate more egalitarian distributions not only of party resources, but also of judicial resources. By "judicial resources" I mean judicial personnel (judges, court staff, and jurors), the time and attention of those personnel, and the financial and other wherewithal of courts, as well as the ways in which procedural rules and doctrines allocate those other resources. The basic demand of access to justice with respect to judicial resources is that they be distributed more or less equally across different categories of cases and different groups of litigants. Conversely, access to justice is undermined when a larger [*1491] share of judicial resources is devoted to certain, favored categories of cases than to other, disfavored ones. Although rarely presented in such stark terms, the demand for a more egalitarian distribution of judicial resources is implicit in certain critiques of contemporary civil practice. Many of those critiques fault courts for focusing unduly on "big" or "complex" cases (often with larger financial stakes) at the expense of more routine cases, skewing the distribution of judicial resources in favor of the former. There are several different mechanisms through which such maldistribution of judicial resources can occur. In the most direct mechanism, courts foreclose a particular cause of action, effectively withdrawing all judicial resources from that category of litigation so that they can be reserved for other, "more important" cases. This occurs, for instance, when courts embrace the "floodgates" argument, the idea that certain sorts of law suits should not be allowed because to do so would 'swamp' the courts with litigation. The court supposes that if it were to allow that type of suit it would lack the time to consider promptly enough other law suits aiming to vindicate rights that are, taken together, more important than the rights it therefore proposes to bar. The access-to-justice concern with the floodgates argument is that courts invoke it disproportionately to avoid having to deal with disfavored claims typically brought by disfavored groups of litigants, such as prisoners or discrimination plaintiffs. When they do so, courts are effectively reallocating their resources away from those disfavored cases toward ones deemed more important. Courts can also end up distributing judicial resources among different categories of cases somewhat more indirectly, simply by devoting more time and attention to some and thereby leaving less for others. This seems to be one potential concern with the practice that Judith Resnik has dubbed "managerial judging," whereby judges focus on the "managerial" tasks associated with shepherding cases through the pretrial phase (usually resulting in settlement) at the expense of the more traditionally "adjudicatory" tasks associated with actually deciding cases on the merits. Criticisms of managerial judging have tended to focus on [*1492] the practice's costs for managed cases, particularly the risk that judges will abuse their power to prematurely terminate potentially meritorious lawsuits. But managerial judging might also have more systemic implications for the distribution of judicial resources. In particular, insofar as more complex cases require more case management, judges who adopt a more managerial posture will end up spending more time and attention on complex cases than they otherwise would, necessarily reducing the time and attention they have to spend on more routine cases. The prevalence of managerial judging can thereby end up slighting routine cases. Once again, from an access-to-justice perspective, the worry is that courts are giving certain categories of cases short shrift so that they can focus on the ones that, from many judges' perspectives, really matter.