The Federal Courts: Challenge and Reform, Revised Edition

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.

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