02 January 2008

Trimming the Federal Court Workload

Current federal court case loads are as follows:

The Supreme Court of the United States
Cases Filed 8,521 (up 4%)
*Paid 1,723
*In Forma Pauperis 7,132
Argued 78

The Federal Courts of Appeals
Filed 58,140 (down 12% mostly)
*Criminal 13,167 (down 14% to pre-Booker level which set record in 2005)
*Adminstrative 10,382 (down 21% due to BIA caseload drop from record in 2005)
*Civil 30,241 (down 5%)
**Prisoner's Petitions 15,472 (down 8% to pre-Booker levels)
*Original Proceedings 3,775 (down 31% to pre-Booker levels)

The Federal District Courts

Civil 257,507 (down 1%).
* Diversity 72,619 (down 10%) (due to drop in asbestos and diet cases in E.D. of PA)
* Federal question 139,424 (up 3%)
* U.S. Party 45,464 (up 3%)

Median disposition time 9.6 months (up 1 month mostly due to M.D.LA oil refinery explosion cases)

Criminal 68,413 (up 2%; defendants up 1% to 89,306)

Median disposition time 7.1 months

Bankruptcy Courts
801,269 (down 28% due to new bankruptcy law and pre-effective date surge)
*Nonbusiness (down 29%)
*Business (down 5%)

Chapter 7 (down 42%)
Chapter 11 (down 2%)
Chapter 12 (down 4%)
Chapter 13 (up 13%)

Post-Conviction Supervision
Persons under post-conviction supervision 116,221 (up 2%)
* Supervised release 89,497
* Parole 2,575
* Probation 23,974


A two year old Supreme Court case, a two year old major bankruptcy law revision, an ill advised immigration appeal system reform implemented by Attorney General Ashcroft and tweaked by Attorney General Gonzales, and three mass tort cases account for the vast majority of the trends observed in the dockets that have otherwise been stable.


As my regular readers know, I favor a dramatic reduction in the docket of the federal courts for federalism, litigant cost and political policy reasons. The substantive and procedural laws and rules that apply in federal court and the judges that preside there are worse from a progressive point of view than most state courts handling similar matters most of the time.

Federal crimes

Federal criminal offenses that are duplicative of state crimes, such as intrastate murder, bank robbery, drug and firearm offenses, should be removed from the statute books. There is no reason for the federal courts to handle local drug possession, drug dealing and drug manufacture cases. The role for the federal criminal courts in national drug policy is to handle cases of international and interstate transportation of drugs, and to multistate drug distribution rings. Notably, the vast majority of state drug laws either carry less draconian sentences for comparable offenses than the federal mandatory minimum sentence regime, often with treatment oriented drug court options, or are in the process of being reformed.

The existing system in which serious criminal offenses in Indian country are tried in federal court is also broken (a failed policy establisehed in 1885). I'm not enough of an expert in Indian law to know how to fix it, and I'm inclined to think that simply following the most logical step of vesting jurisdiction over those cases in state courts would offend Native American tribes' ideas about sovereignty. One attractive idea might be to have all (or most) Indian tribes agree by treaty to create a parallel system analogous bureaucratically to the military justice system in which a "Circuit Court of Indian Country" might have trial judges who ride circuit conducting trials in serious criminal cases in tribal court court houses, and also have an appellate division in which other judges hear appeals from those cases second only to the U.S. Supreme Court.

I would envision these two reforms reducing the criminal case load of the federal courts by about 40%, with an even more dramatic reduction in the share of violent crimes handled in the federal courts. Smuggling cases, corruption cases, immigration cases, regulatory cases and interstate white collar cases would dominant the remaining docket.

A more sensible immigration policy could also dramatically shrink the federal criminal docket. About of quarter of all federal criminal cases involve charges of alien smuggling, illegal entry, or illegal reentry, something that would decline dramatically if immigration quotas better matched demand, but something that is not included in the estimates in this post.

The Federal Civil Docket

Diversity jurisdiction in cases that do not have complete international diversity, other than multi-state class actions, product liablity and interpleader cases, should be eliminated. This would cut the diversity jurisdiction docket by about 35%. Car accidents and contractual disputes between businesses in different states make up a large share of these cases, and state courts are better qualified to handle these cases than the federal courts that have to pretend to be state courts for many purposes when dealing with these cases.

Federal question jurisdiction involving private parties should be narrowed to those cases that have always been in the exclusive jurisdiction of the federal courts or in the jurisdiction of the federal courts regardless of the amount in controversy even when there was an amount in controversy requirement. This would reduce the federal question docket by about 20%, primarily by returning non-union/management employment cases to the state courts. The federal courts have done a miserable job of handling these employment cases and there is no reason that the federal courts are uniquely qualified to handle disputes between private parties between domestic employers and their employees (usually in the same state) over wrongful terminations, minimum wage and overtime disputes, and employee benefit issues, simply because they arise under federal rather than state laws.

There is also no reason that student loan collections can't be handled outside federal courts by transferring them to a non-profit corporation without U.S. government status, to be enforce just like student loans from commercial lenders. The changes suggested above would also keep out of federal courts the vast majority of drug related property forfeiture cases. These changes would cut the number of U.S. Plaintiff casees roughly in half.

The reduced size of the federal criminal docket would reduce the number of U.S. Defendant cases by 15%, largely by reducing the number of petitioners from federal prisoners. The bulk of the U.S. Defendant cases are social security benefit disputes and federal prisoner's petitions.

Overall, the reduction in the federal civil docket from these reforms would be about 25%, which combined with a 40% reduction in the federal criminal docket would reduce the total demand on federal district courts by about 28%. This would be handled managerially by not renewing the contracts of federal magistrate judges who serve for fixed terms, rather than the lifetime terms of office of federal district judges. In the U.S. Courts of Appeals, the number of senior judges and staff lawyers could be reduced to handle a corrosponding decline in work.

The increased demand on the state court systems from these reforms would be modest (in most states, a one-time increase of less than 2% in case loads) because federal cases make up such a small percentage of all civil and criminal cases respectively.

Primary source: SCOTUS press release.

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