The Shortage Of American Judges

One of the least acknowledged but most pervasive drivers of American judicial culture is that the American legal system has fewer judges, relative to the number of lawyers, relative to the number of lawyers who have litigation practices, relative to population, relative to the number of cases in the system, or by just about any other measure you would care to chose, than any other country in the world.

The U.S. Has Fewer Judges 

This is true of every U.S. state and territory.  Most of the variation from state to state within the United States arises from the fact that some places have limited jurisdiction courts staffed by full time judges, while other places have limited jurisdiction courts staffed by part-time judges sometimes called justices of the peace.  There is less variation in the staffing patterns of general jurisdiction courts and appellate courts, although obviously there is some variation in these staffing decisions as well.  Something on the order of 90% of U.S. judges are state or local government employees, rather than federal government employees.

This conclusion is robust across a wide variety of definitions of judges applied consistently (e.g. including or excluding federal judges, including or excluding magistrates and administrative law judges, including or excluding staff lawyers in the judicial branch including or excluding ADR professionals such as mediators and arbitrators in the public and/or private sectors).

The number of judges in the Europe, whose population is perhaps a third that of the United States, is on the order 700,000 according to a recent report from the "Eurocracy" reported at the Legal Theory Blog, yet Europe has fewer "lawyers" than the United States.  This appears to include lay judges who are not legally educated, chosen on a non-random basis, and sit for limited terms in more serious cases (typically criminal ones or labor disputes).  Other civil law jurisdictions (e.g. Japan and South Korea) are generally similar, although the number of judges per capita declines significantly in the Third World.  Definitional issues become deeply problematic in places like China, Iran, and Saudi Arabia that don't adhere closely to European style arrangements of formal dispute resolution.

The number of lawyers in the United States (which is larger than the number of lawyers in other countries at least in part as a function of the broader definition of who counts as a lawyer in the United States - fewer professionally trained legal professionals count as lawyers in other most countries) is about 1,400,000 and the number of judges in the United States with the title of judge or federal administrative law judge is something under 28,000.

Thus, Europe has about one and a half lawyers for every judge, while the United States has about fifty lawyers for every judge.

This Is Still True If One Adjusts For The Uniquely American Version Of Jury Trials

The two complicating factors that would even these scales are that the United States military justice system uses non-legally trained soldiers in a variety of courts-martial system roles, particularly in less serious cases, although not particularly more than any other modern military force, and that the United States makes much greater use of juries than other countries (even relative to countries in the Anglo-American legal tradition like England). 

Many countries around the world make use of juries in criminal cases, but most of those countries reserve them for very serious charges (typically aggravated felonies), while juries usually of at least six ordinary individuals in misdemeanor cases and twelve in a felony cases.  Jurors are chosen for a particular case in a manner that is at the first cut random from the general adult population, are routinely utilized in American criminal cases involving even minor misdemeanors.  Grand juries who are likewise chosen at random but to serve for longer terms on multiple cases during their terms are used to screen charges prior to trial and judicially investigate alleged criminal conduct in all federal criminal cases, in most serious state criminal cases in perhaps a third to a half of U.S. states, and in exceptional cases with political or organized crime implications in almost every U.S. state.

Juries are virtually absent from all but the narrowest class of exceptional cases in civil law countries and in England.  In the United States, juries are available in perhaps 80% of non-family law, non-juvenile civil cases in courts of general jurisdiction (waivers of the right to jury trial without arbitration clauses are routine in large dollar debt-collection practice), compared to perhaps 1%-2% of comparable cases in England (although juries are allowed in some claims for money damages against the government in England where they are not available in most U.S. states). 

No country other than the United States utilize juries so routinely in ordinary contract and tort disputes, although civil jury trials are increasingly very rare, especially in cases where an award of damages for pain and suffering or emotional distress is not available, in the United States.  About three-quarters of civil juries hear personal injury cases involving run of the mill accidents from car collisions to slip and fall cases to more exceptional incidents.

About sixty jurors sit in jury trials at petite jury members (as opposed to grand jurors) each year per judge.  So, including jurors, the United States has something on the order of 1,708,000 judicially acting individuals in any given year.  In addition, the number of grand jurors serving in a given year in the United States is something on the order of 60,000-90,000.

On a full time equivalent basis, however, jurors make up something on the order of 16,800 FTE equivalents.  The number of grand jurors serving in a given year on a FTE equivalent basis is something on the order of 5,000-7,5000 people.  Given that not every judge is a full time judicial official either, the number of FTE equivalent judges in the U.S. and the number of FTE equivalent jurors in the U.S. is roughly equal, and the total number of FTE judicial decision making officials in the U.S. in any given year is about 56,000, roughly one per 25 lawyers admitted to practice in the United States.  This is still an order of magnitude less than the number of European judges, some of whom are also part-time, possibly bringing the ratio of FTE European judges to something like 2.5 per European lawyer.

The U.S. Judiciary Is Bottom Heavy

The mix of judges in non-Anglo-American law cases is also quite different from those in the United States.  The mix of judges in civil law countries is typically much more top heavy. 

In the U.S., the U.S. Supreme Court has nine judges, while the state supreme court's have five to nine judges each.  Every U.S. Supreme Court judge and many state supreme court judges (and not an insignificant number of well respected intermediate federal appeals court judges) are minor celebrities.  In civil law countries, it isn't unusual for the highest ordinary court to have scores of judges who are assigned to cases on a subject-matter expertise basis, and except for the chief justice and heads of each subject-matter division, they are no more well known than comparable intermediate appellate court judges in the United States.  The celebrity and relevance to interpreting the law that we heap on the written opinions of elite appellate judges in the United States is mostly carried in civil law countries by leading law professors in various specialties, with the written opinions of elite appellate judges playing a much less prominent role due to the deceased quasi-regulatory authority of civil law judges to make law and rule on public law questions commonly addressed by U.S. judges such as civil rights violations and rulings on the constitutionality of statutory laws.  In civil law countries, these tasks are often delegated to a specialized and prominent constitutional court whose appointments are quite political relative to ordinary judges and who don't involve themselves in routine private law issues of torts, breaches of contract, and the like.

In civil law countries, cases that would be handled by a single U.S. general jurdisdiction court judge supported by a jury at the trial stage, are typically handled by three or five civil law judges (sometimes including one or two lay judges) one of whom takes a lead and manages most of the non-dispositive stages of the process such as taking testimony from witnesses, and the intermediate appellate court panel which would typically consist of three judges in the U.S. would typically have a couple more judges than the first instance court in civil law countries and would typically take some new evidence as well as legal argument.  The only cases typically handled by a single judge in civil law countries are the kinds of cases that would be handled by limited jurisdiction trial court judge or magistrate (often without jurors) in the United States, i.e. minor criminal matters and small civil claims.

Notably, the mix of judges in civil law countries more closely matches the mix of lawyers in comparable U.S. litigation.  It is almost routine in general jurisdiction civil cases and felony criminal cases that go to trial for at least two lawyers to handle the case at trial, and in very high stakes cases each side's team of lawyers is routinely larger.  It isn't unusual to have half a dozen lawyers work directly on a case before the U.S. Supreme Court and to have many more file amicus briefs solicited by one party or another.

Judicial Career Tracks

The career track of judges in civil law countries (and even England, to a lesser extent) also influences this structure.  In civil law countries, one goes directly from law school into the judiciary, starting in traffic or parking court and working one's way up the ranks with a decent shot of becoming a rank and file supreme court judge before the end of one's career if you are smart and competent.  Judicial appointments (other than to the constitutional court) are often no more political than the appointment of any other civil service professional in the U.S. would be, and the vast majority of judges have never been lawyers who represent individual clients (although some countries treat serving as prosecuting attorneys and serving as judges as part of the same profession in the judicial branch allowing for some exchange between those two groups). 

The career track of civil law judges is more like that of U.S. prosecutors or attorney-general's office lawyers than it is like that of American judges.  And, unlike American law professors, who typically have only entry level experience practicing law beyond a judicial clerkship, if any, law professors in civil law countries (unlike judges), at least until they have reached a rank equivalent to that of a tenured full professor and sometimes even afterwards, will typically maintain a part-time private practice of law in which the professors act like wily lawyers instead of stodgy professors (civil law law school academics are far more stuffy and doctrinal, and far less ideologically boundary pushing and teaching oriented than U.S. legal educators).

In contrast, in the U.S., most judges are fairly well politically connected individuals in a second career that followed a successful career as a litigation lawyer in public or private practice, most often as a prosecuting attorney, but not infrequently also or instead as a criminal defense lawyer, or a private civil litigator.   The track of moving from a less prominent career to a position as a subordinate magistrate judge to taking the job their judge-boss held is also increasingly common in the U.S.  And, sometimes, particularly in the case of high profile appellate judge appointments, a judge's first career is as a law professor or legally trained senior civil servant or a legally trained politician, although each of these kinds of appointments would be exceptional.  Until roughly the 1950s it wasn't all that uncommon, particularly in rural areas, for a prominent local citizens who was a non-lawyer to be appointed as a part-time trial judge in a limited jurisdiction trial court, and the practice hasn't entirely ended.  Colorado, the last time I checked, had at least four non-lawyer county court judges, and also at least some non-lawyer municipal judges in small towns and non-lawyer parking magistrates.  But, in New York State outside metropolitan New York City (at least until very recently) and many other states, part-time non-lawyer judges outside major cities with jurisdiction only over small claims cases and minor misdemeanor, traffic and ordinance violation cases remain fairly common.

The prestige judicial appointments in the U.S. most often, but not always, follow a previous judicial appointment as a less prestigious appellate judiciary position, a stint as a general jurisdiction trial court judge, or less often, a position in a state or federal solicitor general's office (the branch of the attorney-general's office that argues cases in front of the relevant supreme court), or as a renowned law professor.

The exception to the general rule would be members of the French Council of State and public law institutions crafted in its image in civil law countries and constitutional courts.  These institutions staffed at the entry level with elite civil servants who are graduates of top universities drawn from the ranks of the kind of people who in the United States might serve as judicial law clerks out of law school, as kitchen cabinet political aides to elected officials and senior political appointees (e.g. as a Congressman's legislative aid or Congressional committee staffer), as entry level professional employees in elite government agencies like the solicitor-general's office or CIA or SEC, or as associates at Big law firms or entry level investment bankers.  At first, they are assigned in pairs to public law cases, sometimes representing a complaining member of the public as a devil's advocate, and sometimes representing the government, and their cases are judged by more senior members of the same institution who have come up through the ranks.  The overall process is more akin to Congressional and executive agency constituent service work than it is to conventional lawyering.

Implications For American Law

How does this play out in the legal life of an American lawyer?

* The shortage of judges has produced a strong institutional bias in favor of negotiated settlements over judicial resolution of litigated disputes on the merits in American courts, and in favor of arbitration and mandatory mediation processes.

* The shortage of judges and a bottom heavy distribution of judges has encouraged doctrines affording exceptionally high levels of finality to trial court decisions and relatively weak appellate review of trial court decisions.  U.S. judges and juries have far more effectively unreviewable discretion than civil law judges.  For example, outside the U.S. when a decision of a judge is reversed for abuse of discretion, the case is almost automatically assigned to a different judge when it is remanded for further proceedings.  In contrast, in the U.S., in all but the most rare and exceptional of cases verging on a gross ethical violation by the judge, a decision of a judge that is reversed for abuse of discretion is automatically remanded to the same judge who must exercise his discretion again subject to the appellate court's order that may still afford him considerable authority to reach a similar, although less extreme, decision.

* Doctrines and procedures that reduce judicial case loads by resolving cases prior to the taking of any evidence in a trial (with or without a jury), or in a preliminary hearing limited to more narrow issues, have thrived in U.S. courts, because they reduce judicial time constraints.  Doctrines that resolve cases on narrow procedural grounds, rather than on a consideration of the merits based upon all of the evidence are favored.

* Doctrines and procedures that reduce attorney work loads, for example by narrowing the scope of discovery through close judicial supervision of the process or reducing the uncertainty involved in trial preparation, without actually getting a case off the docket, have not thrived in the U.S. courts despite being at the core of civil law country civil procedure.

* The administrative and litigation process strongly favors rules and procedures that delegate more of the time consuming components of the process to the lawyers and limits the judges to a final decision making mode whenever possible. 

Most of the trial court level testimony in civil law jurisdictions is conducted in the presence of a judge in a first official examination of a witness by anyone involved in the case, and the judge personally takes notes in lieu of a verbatim transcript; in the U.S., most of that testimony would have taken place in depositions in the absence of a judicial official other than a court reporting preparing a verbatim transcript, in a lawyer's office, before trial, and only critical portions of the deposition transcripts are presented to the judge in support of pre-trial motions. 

The first draft of longer court orders in U.S. courts are routinely drafted by counsel for the prevailing party for review, consideration, modification or adoption by the judge.   U.S. judges rely more heavily on briefing from counsel relative to their own legal research and knowledge than civil law judges, and are more likely to have their own legal research done by a subordinate law clerk rather than doing the research personally, in an ordinary case.

In criminal cases, investigations are conducted mostly by non-lawyer police aided from time to time by mass producible search warrants and subpoenas.  So, unlike civil litigators who must develop the evidence themselves, criminal prosecutors have considerable staffs of sworn police officers and other investigative officials to do the work that would fall to the discovery process and extra-judicial investigations managed by lawyers in civil litigation.  In civil law countries, some of the investigative work in criminal cases that is the responsibility prosecutors in the United States is the responsibility of the judge.

* The shortage of judges and their career track in the United States have conspired to make the U.S. judiciary a very elite group of individuals, even compared to the already elite professional ranks of U.S. lawyers.  U.S. judges are not only the cream of the crop in a way that judges elsewhere are not, they are also at intermediate levels of the system more likely to have a wealth of experience in some kind of litigation and considerable social clout in elite political and business circles.  While many non-U.S. judges are merely "middle class", the vast majority of U.S. judges are upper middle class and many have roots at least in the upper class and are working as judges as much for the prestige and out of a sense of civic obligation, as for money.  For them, it is a form of reduced pay early retirement.

These dynamics produce a group that collectively sees the opportunity to exercise power as a perk in and of itself.  U.S. judges are relatively speaking, ambitious and power hungry.  The classic problem in U.S. legal practice is how to restrain a judge who abuses his authority, not how to encourage a judge to act boldly where necessary.

The elite status of judges has produced a quality of decision making that has facilitated considerable legislative and public trust in the judiciary.  Judges are entrusted with political sensitive common law decision making on emerging private economic and family issues, loose discretionary standards for decision making in equity matters, vaguely drafted statute and regulations, substantial public law decision making power including the power of judicial review of statutes for constitutionality (contrary to popular myth, is shared by every judge from the traffic court judge to appellate court judges, not just the U.S. Supreme Court), the contempt power (using fines or imprisonment to punish those who disobey their court orders, at least until compliance is secured, or to punish people engage in courtroom misconduct), the power to decide cases without the involvement of other judges on a panel, the power to manage cases with potential unlimited punitive damage awards, with potential long terms of imprisonment, with resolution of custody and citizenship maters, and in death penalty cases, because they tend to be far more intelligent than even the average politician, are more willing to show self-restraint in the interest of applicable but effectively unenforceable rules, and are also not politically tone deaf or naive.  U.S. judges are almost immune to performance reviews that personally impact their lives during their terms of office for anything other than gross ethical breaches.  Even high rates of appellate reversal do not personally impair a judge's career or employment situation in most cases.

Non-U.S. judges mostly lack contempt of court power, have much narrower public law jurisdiction, i.e. authority over governmental entities (if any), do not have the power of judicial review, must often make decisions on important matters as part of a panel, have legal standards to implement that afford them less discretion, implement more tightly drafted statutes and regulations, can have their factual decisions as well as their legal decisions reviewed de novo on a first appeal of right, have less of an ability to make precedents that have force beyond the current case, have more finely nuanced layers of jurisdictional authority with a far small proportion of judges having the full authority of a U.S. general jurisdiction trial court judge, less personal clout, less elite backgrounds, smaller caseloads, less opportunity to make politically sensitive decisions, less practical legal experience in most cases, and less ambition.  Non-U.S. judges, by virtue of their career tracks, have far more incentive to fit managerial expectations in order to move up the ranks with attendant higher pay, greater power and more interesting cases.

* Judges, by virtue of their far greater case loads and among trial judges, minimal need to sway a group to their judgments, have far more personal influence on their cases and on the legal environment in their jurisdiction.  Conversely, judicial decision making in the U.S. is less consistent.

* Some of the perennial proposed civil procedure reforms, like "active case management" routinely flounder, because judges with huge case loads simply cannot spare the time to devote more attention to cases that are likely to eventually through the discovery process and either settlement or a straight forward culminating motion, be resolved prior to trial with minimal judicial involvement.  Any case where both sides are represented by lawyers is particularly likely to resist active judicial involvement since the lawyers often are capable of working things out.  These reforms will only succeed if a sustainable solution to a lack of judicial resources is devised for the class of cases receiving additional judicial attention.

* Two factors among many that has driven low judicial staffing levels have been the twin desires to keep court filing fees low so that access to the judicial system is not formally barred by public official's rules, and the desire to have civil courts (where judicial resource constraints are even more acute than in criminal cases) fund themselves as much as possible from filing fees.  Policy makers have tended to disfavor the equation of higher filing fees and lower case loads found in private sector non-consumer arbitration procedures. 

* Policy makers have also tended to favor having fewer elite judges over having more less elite judges, because our legal system gives all judges considerable power and non-elite judges in this system have great potential to do mischief.  This has removed one option to reconcile low filing fees with adequate staffing levels.