Conference on Assessing the Effects

of Legislation on the Workload of

the Courts: Papers and Proceedings

A. Fletcher Mangum, editor

Federal Judicial Center 1995

This Federal Judicial Center publication was undertaken in furtherance of

the Center’s statutory mission to develop and conduct education programs

for judicial branch employees. The views expressed are those of the authors and not necessarily those of the Federal Judicial Center.

iii

Contents

Acknowledgments v

I. Introduction 1

Opening Remarks

by William W Schwarzer 3

II. Background 5

III. Policy Session 9

Interbranch Communications: The Next Generation

by Shirley S. Abrahamson and Gabrielle Lessard 11

Proceedings from the Policy Session 27

IV. Theory Session 31

Caseloading in the Balance

by Samuel Krislov 33

Judicial Impact Statements: Unpacking the Discourse

by Frank Munger and Joseph Belluck 47

Judicial Preferences, Public Choice, and the Rules of Procedure

by Jonathan R. Macey 61

Overcoming the Competence/Credibility Paradox in Judicial

Impact Assessment: The Need for an Independent Office of

Interbranch Relations

by Charles Gardner Geyh 79

Proceedings from the Theory Session 95

V. Applied Session 97

Development and Ongoing Operations

by Nancy Potok 99

The Impact of National Legislation on State Courts

by Thomas A. Henderson with Marilyn M. Roberts

and Maria E. Schmidt 105

Status of Judicial Impact Notes in Washington State

by Janet McLane 111
Effects of Legislation on the Workload of the Courts

iv

Observations on Impact Models for the Federal Courts

by William Jenkins, Jr. 117

Preliminary Findings: A Retrospective Analysis of the Effect of

Legislation on the Workload of the U.S. Courts

by Frank Arnett and A. Fletcher Mangum 135

VI. Summary 151

Endnotes 153
v

Acknowledgments

The editor would like to thank Frank Arnett for his invaluable assistance

in coordinating this conference.

1

I. Introduction

At both the federal and state levels, recent court-sponsored efforts in longrange planning have led to a renewed interest in the relationship between

legislation and court workload. In response to this interest, and as part of

its mission to conduct and stimulate research relevant to judicial planning,

the Federal Judicial Center (FJC) hosted a conference in April 1993 on assessing the effects of legislation on the workload of the courts. The conference was held in the Thurgood Marshall Federal Judiciary Building in

Washington, D.C., and Judge William W Schwarzer, then-director of the

FJC, provided the opening remarks. The purpose of this conference was to

facilitate current efforts in judicial impact assessment by providing a forum

where a broad spectrum of individuals with a shared interest in this area

could come together to exchange information and ideas. This publication

provides a record of the papers prepared for this conference and a summary of the conference proceedings.

The conference consisted of a policy session, a theory session, and an

applied session. Discussions in the policy session focused on the role of judicial impact assessment in the broader context of communication between

the judiciary and the legislature. The panel for this session included members of the state and federal bench, congressional staff, and the Brookings

Institution. Discussions in the theory session focused on the theoretical underpinnings of judicial impact assessment, as well as the political environment in which judicial impact assessments are produced and how that environment affects their development and presentation. The panel for this

session consisted of academics who have made important contributions to

this area of study. Finally, discussions in the applied session focused on the

nuts-and-bolts issues associated with actually producing judicial impact assessments. The panel for this session comprised individuals who have had

hands-on experience with some aspect of judicial impact assessment.

Panelists were drawn from the administrative offices of the state and federal courts, the National Center for State Courts (NCSC), the U.S. General

Accounting Office (GAO), and the FJC.

This publication is organized as follows: To provide some context and

facilitate a better understanding of the general themes discussed at the conference, Part II includes background information on how legislation affects

court workload and on the historical development of judicial impact assessment as a tool by which to measure this effect; Parts III through V con-
Effects of Legislation on the Workload of the Courts

2

tain the papers prepared for each session—in those instances where ideas

broached in the plenary discussions extend or supplement the material

provided in the written contributions, summaries of those discussions are

also included; and Part VI presents concluding remarks. Some of the authors have made additions or changes to their papers to incorporate more

recent information.
3

Opening Remarks

William W Schwarzer

Federal Judicial Center

I want to welcome you to this conference on assessing the effects of legislation on the workload of the courts. This conference was initiated by the

Planning and Technology Division of the FJC as part of its mission to support the Long Range Planning Committee of the Judicial Conference of the

United States by stimulating and conducting research relevant to the committee’s planning efforts. An additional goal of the conference is to support

the mission of the Administrative Office of the U.S. Courts in the area of

judicial impact assessment by providing information that may prove useful

to the ongoing efforts of the Judicial Impact Office.

At both the federal and state levels, recent court-sponsored efforts in

long-range planning and legislative–judicial relations have led to a renewed

interest in the relationship between legislation and court workload.

Particularly relevant for long-range planning is an evaluation of the impact

on the court’s caseload of statutes that create or extend federal courses of

action and remedies.

To what extent can the courts plan for caseload trends associated with

particular causes of action? Which forecasting methods are the most accurate for this purpose? How should we construct our data-collection activities in the future to facilitate these forecasts? When does Congress need an

evaluation of potential court workload impact in its deliberations on proposed legislation, and how can the information provided by these evaluations be communicated most effectively?

To consider these and other questions, we have invited participants

with a wide variety of perspectives, but with a shared interest in the role

that statutes play in generating litigation. In the larger context, this conference can also be viewed as the kind of cooperative effort advised by participants at last year’s conference on state–federal judicial relationships in

Orlando, Fla. Planning for change in complementary state and federal judicial systems requires a coordinated examination of the relationship between litigation and legislative initiatives. In studying the effects of legislation on the workload of the courts from a variety of perspectives, we hope

to further our understanding of how judicial systems adapt to change and

prepare for the future.

Thank you for your participation in this conference.

5

II. Background

The following discussion of the ways in which legislation affects court

workload—and the description of the historical development of judicial

impact assessment as a tool for estimating the magnitude of that effect—

helped frame the issues considered at the conference.

How Legislation Affects the Courts

Legislative proposals typically affect court workload in one of three ways:

operationally, substantively, or through judicial interpretation.

Operational impact has the most obvious effect on the courts and is

therefore the type of impact most frequently addressed in judicial impact

assessments. It involves legislation that would directly affect court procedures (e.g., adding or modifying procedures for bringing a person to trial,

conducting a trial, sentencing, or appeal); court administration (e.g., altering the responsibilities or number of court personnel); or court financing

(e.g., increases or decreases in budget appropriations). Substantive impact

involves the elimination or creation of statutory causes of action (e.g., the

elimination of diversity jurisdiction in the federal courts). Finally, legislation can affect court workload if the wording of a statute requires judicial

interpretation. Judicial impact in this situation occurs not because of what

the legislation says, but because of what it either omits or does not say

clearly. As U.S. Supreme Court Justice Ruth Bader Ginsburg wrote when

she was a circuit judge, “because statutes sorely in need of more definite

statement are susceptible of diverse interpretation, they inspire litigation. . . .” and can generate inconsistency and disagreement among the

lower courts.1

Development of Judicial Impact Assessment

In his 1972 address on the state of the judiciary, Chief Justice Warren

Burger called for judicial impact statements as a tool to assist the federal

judiciary in “rationally plan[ning] for the future with regard to the burdens

of the courts.” Congress could, he said, require them, in similar fashion to

environmental impact statements, to accompany all proposed legislation

that would likely create new cases in the federal courts. He pointed to the

Criminal Justice Act of 1964 and the Bail Reform Act of 1966 as well-motivated statutes that had unintended consequences on the federal courts’

ability to administer criminal justice.
Effects of Legislation on the Workload of the Courts

6

Chief Justice Burger’s address generated a wave of interest in judicial

impact assessment at both the federal and state levels. Federal court

caseload data at the time showed that civil actions under statutes had increased from 13,427 filings and 23% of the civil caseload in statistical year

61 to 43,750 filings and 47% of the civil caseload in statistical year 71.2

Several research projects were initiated during the late 1970s. The most

comprehensive of these was conducted under the auspices of a National

Academy of Sciences (NAS) grant, which charged the Panel on Legislative

Impact on Courts to evaluate “the feasibility of estimating the changes in

workloads that courts would experience with the adoption of new legislation.”3

 The panel reached two conclusions in its 1980 report. It found

that, as proposed by Chief Justice Burger, the application of judicial impact assessment to all legislation that might create new cases in the courts

was not feasible because the empirical and theoretical tools necessary for

such across-the-board forecasts were not yet available. Importantly, however, the panel also determined that the process did seem feasible “if a

more modest view [was] taken” of the goals of judicial impact assessment,

employing it only “in selected instances” for specific legislative proposals.

In the wake of this report, interest faded in judicial impact assessment

at the federal level. One possible explanation for this decline in interest is

that at the federal level, judicial impact assessment became tied up in a

larger effort to forecast caseloads primarily for the purpose of anticipating

future judgeship needs. (In fact, much of the discussion in the NAS report

explicitly assumed that judicial impact assessments would be used for this

purpose.) When it became apparent that across-the-board judicial impact

assessments were not tenable, their usefulness within this larger effort was

compromised, and interest waned.4

At the state level, however, judicial impact assessment remained the

subject of continued, if sporadic, attention for two reasons. First, following

the “more modest” approach suggested in the NAS report, states used

these assessments to forecast the judicial impact of selected legislation

only. Second, state judiciaries were less reluctant than their federal counterpart to use judicial impact statements to communicate with their legislatures in order to influence policy.5 As a result, during the 1980s judicial

impact assessment continued to develop and spread in the states.

Recently, because of a new focus on planning and legislative–judicial relations in the federal and state judiciaries, there has been a renewed interest in judicial impact assessment at all levels of government. At the national level, the Federal Courts Study Committee recommended in its 1990
Background

7

report that “an Office of Judicial Impact Assessment should be created in

the judicial branch.” Subsequently, such an office was created in the

Administrative Office of the U.S. Courts.6 Also, in 1991 the American Bar

Association called on Congress and each state legislature to establish

mechanisms within their budgeting processes to generate judicial impact

statements for each bill or resolution potentially affecting the federal or

state courts.

At the state level, in 1989 and 1990 the NCSC and the National

Conference of State Legislatures cosponsored a project called “The Future

of the State Courts: Legislative–Judicial Partnership.” One part of this

project focused on the use of judicial impact statements as communication

and problem-solving mechanisms between the first and third branches.

According to NCSC surveys of state and federal court administrative

offices, judicial impact assessment had proved valuable in reducing unanticipated burdens on the court system, improving communication, and fostering a sense of legislative–judicial cooperation.7 In August 1992, the

NCSC began a separate project for the Conference of State Court

Administrators. The project, funded by the State Justice Institute, was to

develop and test a process for measuring the impact of federal legislation

on the state courts.8 The final report from this project was released in

August 1994.9

In light of these developments, the FJC concluded that the judiciary

would benefit if some of the many disparate individuals working in this

field could come together to exchange information and ideas. The

Conference on Assessing the Effects of Legislation on the Workload of the

Courts was designed to provide such a forum.

9

III. Policy Session

Panelists in the policy session were asked to discuss communication between the judiciary and the legislature and the appropriate role of judicial

impact assessments as a vehicle for such communication. In their written

contribution to this session, the Honorable Shirley S. Abrahamson, of the

Wisconsin Supreme Court, and Gabrielle Lessard, then serving as Justice

Abrahamson’s law clerk and now Skadden Fellow at the National

Economic Development and Law Center, Oakland, Cal., provide an excellent framework for the discussion by describing various state government

attempts to solve the unique problems associated with communication between the judiciary and the legislature.

In the first half of their paper, they discuss the development of judicial

impact assessment in the states and draw on the lessons learned from that

development to describe seven characteristics that enhance the effectiveness

of judicial impact assessment as a vehicle for interbranch communication.

The authors then move on to a more general discussion of interbranch

communication and describe the pros and cons of certain legislative, judicial, and interbranch institutions that have been created in the states to

deal with the issues of interbranch communication, statutory interpretation, and legislative revision.

In the final part of this section, a summary is provided of those portions

of the oral presentations and plenary discussions from this session that extend or supplement the material provided in Justice Abrahamson’s and

Lessard’s paper.

11

Interbranch Communications:

The Next Generation

by Shirley S. Abrahamson

Justice, Wisconsin Supreme Court

and

Gabrielle Lessard

Skadden Fellow, National Economic Development

and Law Center, Oakland, Cal.

Commentators have long recognized that the first and third branches of

our government—the legislature and the judiciary—stand in “proud and

silent isolation” from one another.10 As the world grows increasingly

complex, many question whether maintaining that isolation is wise, let

alone feasible.

The two branches are functionally intertwined. In fact, they are dependent on one another. The judicial system is financed by legislative appropriations. New legislation has an impact on the administration of justice.

The courts’ interpretations of statutes determine whether the legislature’s

objectives are effectuated. Many are convinced that measuring and minimizing the impacts of legislation on the courts will aid in preserving the

courts’ ability to keep pace with their growing workload, ensuring adequate funding of the courts, improving the quality of statutory enactments,

and improving the administration of justice.

These goals might be realized by increasing communication between the

judicial and legislative branches. Yet where should the communication begin? The judiciary and legislature do not know how to talk to one another.

Neither branch understands the “constraints, limits, incentives, motivation

and attributes” of the other.11 Under the combined force of constitutionally mandated separation of powers, our respective codes of ethics, and

a general sense of institutional propriety, we are uncertain if we should be

talking at all. We judges have been taught that involvement in matters that

might later come before our courts may taint our decision making. And we

worry that legislators and others will consider our involvement in the legislative process inappropriate, or that such involvement will jeopardize the

legitimacy the courts derive from their independence of the political process.12
Effects of Legislation on the Workload of the Courts

12

Regardless of our trepidation, the time has come for a serious examination of interbranch communication. Today we explore mechanisms by

which, in Judge Cardozo’s words, “[t]he spaces between the planets will at

last be bridged.”13 This conference may be viewed as part of a continuing

effort to develop such interplanetary communications.

This conference is primarily dedicated to the federal legislative and judicial branches and to development of judicial impact statements for congressional use. Our comments on measuring the effect of legislation on the

courts and on interbranch communication are offered from the perspective

of persons working in the judicial branch at the state level.

Judicial Impact Statements

Interest in measuring the impact of legislation on the courts goes back

about thirty years. We therefore turn first to judicial impact statements,

which had their genesis in the example provided by environmental impact

statements.14 By allowing the judiciary and legislature to share information

about the administration of the judicial system, judicial impact statements

can serve as valuable tools for communication and education among

legislators, judges, and the public.

Development of Judicial Impact Assessment

In 1970, California became the first state to produce a judicial impact

statement.15 Chief Justice Warren Burger proposed the adoption of judicial

impact statements in a 1972 address to the federal judiciary,16 and the

preparation and study of judicial impact statements became a priority in

the Justice Department’s Office for Improvements in the Administration of

Justice under President Carter.17

During the late 1970s and early 1980s, measuring the impact of legislation on the courts was a subject of academic and scholarly interest.18

Interest in the subject has been renewed in recent years. In 1990, the

Federal Courts Study Committee proposed an Office of Judicial Impact

Assessment that would forecast the additional judicial branch resources

needed to process litigation likely to be generated by the adoption of proposed statutes, executive branch actions, or judicial decisions.19 And in

1991, the American Bar Association (ABA) adopted a resolution supporting federal and state legislation mandating judicial impact statements.20

The level of interest in creating judicial impact statements may exceed

the degree of consensus about what they are. For example, the Judicial

Conference in our home state of Wisconsin resolved in October 1992 to
Interbranch Communications: The Next Generation

13

“draft, introduce and work for the passage of the requirement of a Judicial

Impact Statement” on all pending legislation.21 For several years the office

of the Wisconsin Director of State Courts has been preparing statements

for the legislature on the fiscal impact of bills on the courts. To many,

these fiscal estimates (or notes) are judicial impact statements. Others

protest they are not.22

The Institute for Court Management explains the distinction between

fiscal notes and judicial impact statements in terms of purpose: The

“fundamental purpose of a fiscal note is to provide a reliable estimate of

the impact of a bill or resolution on state revenues and expenditures,”

while “[t]he primary purpose of a judicial impact statement is to provide

an analysis of the effects of legislation that extend beyond those that are

easily quantifiable.”23 Examples of impacts of proposed legislation that

cannot necessarily be reduced to dollars and cents include changes in

caseload and caseload mix, modification in court procedures, increased

numbers of pro se litigants, and changes in personnel responsibilities.24

Despite their theoretical advantages, judicial impact statements assessing both fiscal and nonmonetary impacts are not widely used, nor is the

methodology of their preparation well developed.25 At present we not only

lack the databases necessary to generate the statements, but we are unsure

about what information we should collect and how to gather it. Further,

information is stored different ways in the various courts, in the

legislature, and in executive branch entities such as prosecution offices, law

enforcement offices, and correctional institutions.

Lessons from the States

The questions presented by the development and use of judicial impact

statements are complex. We can, however, look to analogous experiences

for direction. Because “the most frequently reported measure of judicial

impact is estimated change in fiscal expenditure,”26 the states’ experiences

in developing and using fiscal estimates can provide useful insights about

judicial impact statements. Researchers might also look to the experiences

of the Congressional Budget Office and the Office of Management and

Budget.

In 1967, Wisconsin became the first state to require fiscal estimates on

bills affecting government costs27 and to prohibit legislative action on any

bill until the required fiscal estimate is received.28 In Wisconsin, as in other

states, the director of state courts is requested to prepare fiscal estimates

for bills identified as affecting the courts.29 These fiscal estimates serve as
Effects of Legislation on the Workload of the Courts

14

the state’s judicial impact statements. For example, in response to

proposed legislation that would require an unemancipated minor to obtain

parental consent before an abortion, the director of state courts filed a

fiscal estimate indicating that the court system’s workload would increase

if the bill were enacted. The fiscal note estimated that costs would be incurred for increased criminal actions, which would mean additional judge

and court reporter time in the more populous counties, and for increased

use of counselors, guardians ad litem, intake workers, witnesses, and transcripts. The estimate, which was based on other states’ experiences with

parental consent statutes, failed to specify a monetary figure, and instead

stated that costs would increase by an indeterminate amount.30 A district

attorney’s fiscal estimate for the same bill stated that it was impossible to

estimate the costs under the proposed legislation.31 The State Public

Defender estimated increased costs ranging from $160,000 to $410,000,32

and the Department of Health and Social Services filed a lengthy analysis

stating that its costs would increase by over $10 million.33

The states’ experiences with fiscal estimates are fertile sources of information for the development and use of judicial impact statements. Several

observations emerge from the states’ experiences.

First, objectivity is critical to the preparation of useful judicial impact

statements. The Wisconsin manual for the preparation of fiscal estimates

repeatedly stresses that the cost-assessment function must not be politicized, instructing that “[a] fiscal estimate should accurately, factually, dispassionately and objectively set forth the total fiscal impact estimated to

occur when the bill becomes law. It should neither endorse nor oppose the

bill, nor concern itself with the bill’s merits as a matter of public policy.”34

Although impact statements may be prepared best by the agency or entity most familiar with the subject matter of a bill, the legislature may be

distrustful of the preparer’s self-interest. As the range of responses to the

Wisconsin parental consent bill suggests, fiscal estimates can be important

ammunition for both proponents and opponents of proposed legislation.35

So, too, the preparation and use of judicial impact statements can have

political consequences.

Whoever prepares impact statements develops expertise and a cumulative database. Information about proposed legislation and the ability to

disseminate it are important sources of power. Those with access to information analyzing pending legislation, especially in the form of “challengeresistant” data, have the capacity to shape the debate. Thus, the preparation and dissemination of judicial impact statements may change the bal-
Interbranch Communications: The Next Generation

15

ance of power in the legislative arena in subtle but important ways. Abuses

in the preparation of judicial impact statements, whether real or perceived,

have the potential to damage interbranch relations. These circumstances

necessitate careful consideration when structuring the preparation of the

statements.

On the one hand, perhaps it would make sense to place an office of judicial impact assessment in the legislature, where the staff of the new

agency and of other legislative agencies would be more likely to form close

working relationships. The legislature may be more likely to accept an

analysis prepared by its own staff than by an agency located in another

branch of government.

On the other hand, since impact on the judicial branch is at issue, it

might make sense to place the office of judicial impact assessment in the

judicial branch, thereby utilizing the significant expertise of judges and judicial administrative staff. The role of judges in the preparation of judicial

impact statements requires more attention. In the absence of databanks,

preparers of impact statements may do well to rely on judges’ anecdotal

accounts of their experiences.

Or perhaps an interbranch entity would help to guard against interbranch rivalry or suspicion, as well as to ensure the integrity of, and build

confidence in, the process.36 Court staff could act in a support capacity to

such an entity, providing information from court records and performing

technical evaluations.

Second, accurate cost estimates are essential to the preparation of useful

judicial impact statements. Sophisticated, technically skilled staff trained in

economics, social sciences, or statistics may be necessary for a correct

analysis of the relevant factors.37 The Wisconsin court system does not

have such trained persons to help prepare fiscal estimates.38

While it is probably not feasible to maintain this kind of technical staff

in every governmental unit responsible for drafting legislation or regulations that might affect the courts, a central resource group might be created to assist the legislature, executive agencies, and the judiciary in

preparing impact statements. Since such a central entity would be independent of either branch, it could be perceived as more objective.

Third, the development of judicial impact statements is a time-consuming, expensive, and inexact process. The methods employed in developing

fiscal estimates vary widely.

In Wisconsin, the preparer of the fiscal estimate is urged to set forth the

methods used to arrive at the estimated costs or savings and to specify all
Effects of Legislation on the Workload of the Courts

16

assumptions used in developing the estimate, particularly when the provisions in the bill are permissive or vague. As a practical matter, fiscal estimates do not always provide these details. As the fiscal estimates for the

Wisconsin parental consent bill demonstrate, an agency may give a wide

dollar range of estimated impacts or may decline to specify any dollar

amount, stating that the estimated fiscal impacts of proposed legislation

are speculative. In many cases, it simply is not possible to be specific; empirical data may not be available. Even though Wisconsin agencies that develop fiscal estimates are encouraged to use other states’ actual experiences

under similar laws, extrastate information does not always exist.

And despite Wisconsin’s emphasis on detail and specificity, estimates

must be produced quickly. A legislative rule requires that fiscal estimates

be furnished within five working days of receipt of a bill, except under

limited circumstances. The short time frame suggests a legislative preference for quick results, regardless of whether further study would produce

more accurate information. The large volume of bills for which fiscal estimates are required, combined with these time limitations, perforce restricts

the quality of the fiscal estimates provided.

These experiences with fiscal estimates suggest that it would be most

practical to use judicial impact statements in a limited way.39 Perhaps

impact statements could be prepared only for selected bills—bills viewed as

having a good chance of passage or bills most directly affecting the courts.

Fourth, to be effective, judicial impact statements must be kept current

as bills move through the legislative process. In Wisconsin, fiscal estimates

are not generally revised as bills are amended; thus, their usefulness for

planning purposes is significantly diminished. Ideally, impact statements

should be available to legislators and the courts not only during the initial

debate but also throughout the process of legislative revision.

Fifth, to the extent that data can be collected, retained, and analyzed,

judicial impact statements have the capacity to become more sophisticated

over time. Neither Wisconsin’s legislative fiscal office nor the director of

state courts now collects or examines data about the impact of legislation

after a statute is enacted. This omission is significant. A database containing a history of actual impacts of enacted legislation could be used to improve the accuracy of projections and to streamline the process of developing impact statements.

Sixth, judicial impact statements will not be effective if they are not

used. Statements must therefore be developed in ways that ensure their

usefulness to—and use by—legislators, legislative staff, judges, and judicial
Interbranch Communications: The Next Generation

17

administrative personnel. Since part of making them useful is making them

available, impact statements should be widely distributed and readily accessible to potential users.

Finally, measuring the impact of proposed legislation is only part of the

picture. We must also strive to minimize the unintended impacts that may

result from deficiencies in draft legislation.40

We all know that some drafting error is unavoidable and that purposefully created ambiguities are not candidates for elimination.41 Nonetheless,

many deficiencies in drafting are probably the result of oversight by the

legislator or the drafter. Even if these cannot be completely eliminated,

their number can be reduced.

The Federal Courts Study Committee has developed a checklist of frequently occurring statutory ambiguities that have required judicial interpretation.42 This checklist is designed for use in drafting and reviewing

proposed legislation.

One possible technique is for the legislative branch to use this checklist.

Under the Federal Courts Study Committee’s proposal, an office in the legislature would be responsible for reviewing proposed legislation to see

whether the various items had been addressed.43 Congress recently declined to codify the Federal Courts Study Committee’s proposal.44

Although checklists of technical matters are common tools in legal

drafting, checklists of substantive issues are found in few, if any, drafting

agencies. At a recent conference of state drafting agencies, we discovered

that not one agency in attendance used a checklist of substantive issues.45

We need to ask ourselves why checklists of substantive issues have not

been more eagerly embraced by legislative drafting agencies. Lack of usefulness does not seem to be the reason. When asked whether his office

would use a substantive checklist, Wisconsin Legislative Reference Bureau

Deputy Chief Peter Dykman responded with an emphatic yes—and with a

request for a copy of the federal checklist. Asked about the potential that a

judicially inspired checklist would generate resentment, Dykman responded that the bill drafter’s goal is to carry out the intent of the legislature, and any resources that would help in finding and expressing that intent would be welcome. Dykman further noted that the judiciary’s concerns about legislation are important to drafters; the power to interpret

statutes gives the judiciary a major role in determining whether the legislature’s intent will be carried out.46

It would also be possible to locate responsibility for substantive and

technical review of legislation in the judicial branch. In Wisconsin, each
Effects of Legislation on the Workload of the Courts

18

entity preparing a fiscal estimate, including the director of state courts, is

encouraged to improve the quality of a bill by furnishing the bill’s author

with a “technical memo” (separate from the fiscal note), highlighting oversights or errors in the bill.47 These technical drafting suggestions have

proved very helpful to the Wisconsin legislature. In like manner, an office

preparing a judicial impact statement is likely to discover shortcomings in

proposed legislation.48

It makes sense to give the judicial branch responsibility for making

drafting suggestions, as long as separation of this task from policy-making

activities can be ensured. After presiding over disputes generated by ambiguities in the statutes, judges are familiar with the types of errors and

omissions that create them.

The checklist approach, regardless of where it is implemented, is limited

by the fact that it is a particularly one-sided mode of communication.

Having laid out their concerns in checklist form, the courts await the legislature’s response. True communication is a two-way process, possible only

when the two branches speak the same language. To write laws that will

reduce the need for judicial interpretation, drafters must be familiar with

the judiciary’s canons of statutory interpretation, so that they can anticipate what the judiciary will perceive the text of a law to mean.49 These

canons, however, conflict with and contradict one another.50 If the courts

ask the legislature to be uniform in drafting, the courts should be willing to

adopt and apply a uniform set of canons of statutory interpretation.

Georgetown Law Professor William Eskridge has suggested that some

agency—the courts, an academic group, or the legislature—might publish a

unified and systematic list of the canons of statutory interpretation that the

courts would then apply. Drafters and the courts would then have the

same interpretive tools. If legislators and judges spoke the same language,

lawyers and the public would be assured that laws were interpreted as the

legislature intended, and the amount of litigation would be reduced.51

In sum, consideration should be given to minimizing proposed legislation’s impact on the courts by improving the drafting process and supplementing the judicial impact statement with a technical review of proposed

legislation to reduce deficiencies in proposed statutes.

Much remains to be learned about the development and implementation of judicial impact statements, but the field is not completely uncharted. We encourage researchers to look to the states, as well as to

Congress, for analogous means of assessing the impact of legislation. We

should build on the knowledge derived from these experiences.
Interbranch Communications: The Next Generation

19

Other Forms of Interbranch Communication

Many believe that the courts’ workload could be reduced if bill drafting

were improved, using, for example, the checklist we have described.

Caseload reductions may also be achieved through communication about

existing statutes. In applying the statutes to disputes, judges discover the

“glitches” in statutes, such as language that fails to convey what the legislature intended and provisions that fail to cover situations the legislature

did not anticipate.52 Experienced judges could be called on to perform

what Judge Frank Coffin called “statutory housekeeping” by calling attention to deficiencies and ambiguities in the statutes.53 We turn now to other

forms of interbranch communication and their potential for minimizing the

effect of legislation on the workload of the courts.

Judicial Opinions

Published opinions are, naturally, the traditional vehicle for judicial communication about existing statutes. Courts communicate with legislators

through their opinions in various—and sometimes conflicting—ways. One

traditional method has been for a court to invite legislative override by

making it clear that a distasteful result is dictated by the statute and its legislative history.54 A variant of this approach is scrupulous adherence to a

statute’s language, creating a result so inconsistent with probable legislative intent that the legislature feels compelled to respond. This approach is

apparently somewhat successful. Professor Eskridge found that Congress

“overturned” U.S. Supreme Court decisions most often when the decisions

relied on the “plain meaning” of the statutory language.55

Nonetheless, judicial opinions often give the legislature little guidance

in crafting a resolution. Some judges are concerned that specific recommendations about the substance of legislation exceed the proper scope of

judicial power. They believe that judges should alert legislators to problems in the statutes without advising them of the courts’ policy preferences.56

Other judges do issue opinions explicitly recommending a particular

legislative action. One advocate of direct judicial recommendations suggests that opinions include a legislative appendix advising the legislature

about statutory revision.

Even if all courts were to agree that judicial recommendations for legislative revision are proper, is it reasonable to believe that legislators will

delve through our opinions to find them? The research suggests otherwise.57 Legislators and their staffs are rarely aware of court decisions un-
Effects of Legislation on the Workload of the Courts

20

less the decisions are brought to their attention by the media or organized

interest groups,58 and most statutes requiring repair will never attract

political attention. Much statutory housekeeping is nothing more than

routine maintenance of noncontroversial statutes, many of which have

fallen into disrepair through years of inattention.59 Focused as they are on

generating new statutes to respond to the issues of the day, legislators have

little incentive to “line up as an ‘enem[y] of the dangling participle’ or foe

of the misplaced modifier.”60

More aggressive approaches by the judiciary are probably required to

capture the legislature’s attention. A minority statement in the Federal

Courts Study Committee report suggests creation of a congressional entity

to alert Congress to relevant court decisions.61 Since the legislative staff

could not possibly read all cases, perhaps someone from the judiciary

could forward appropriate cases to the congressional entity.62 The states’

experiences suggest that even this process might not be enough. Many

states already have institutional mechanisms through which judges can inform legislators about judicial opinions, but it appears that judges rarely

know about or use these mechanisms.

Oversight Mechanisms

Most states have oversight mechanisms—some created by statute, others

operating informally—for legislative or executive branch monitoring of judicial opinions that interpret statutes. These mechanisms vary greatly

among the states, reflecting the diversity of the states’ governing institutions and political cultures and serving a variety of constituencies.63

In many states, these mechanisms are housed in the executive branch. A

few states’ statutes direct the Attorney General to monitor judicial opinions and call the legislature’s attention to those that affect the statutes. In

Oklahoma, for example, the Attorney General is required to advise the

legislature about court decisions declaring statutes unconstitutional.64 In

most states, the Attorney General communicates informally with the legislative and executive branches about court decisions without a statutory

mandate. Many state Attorneys General monitor court opinions as part of

their criminal prosecution function or their work representing and advising

state agencies in litigation. Many state agencies monitor judicial opinions

affecting their own work and communicate with the legislature directly or

through the attorney general.

In many other states, the function of monitoring judicial opinions is located in the legislative branch. It often takes the form of an informal clear-
Interbranch Communications: The Next Generation

21

inghouse; legislative committees merely distribute judicial opinions to legislators and staff interested in specific subjects.

Several state legislatures have established formal mechanisms—revisers

of statutes, legislative staff counsel, and legislative drafting and research

agencies—to inform legislators of needed statutory revisions. Revisors of

statutes are typically mandated to analyze the statutes and to report recommendations for changes to each regular session of the legislature, calling

particular attention to errors, duplications, and conflicts.

Some states require that their oversight entities report to the legislature

about statutes that have been declared unconstitutional or are otherwise

affected by judicial decisions. These reports take a variety of forms. The

Illinois Legislative Reference Bureau reviews all reported Illinois and federal court decisions that affect the state’s statutes and reports annually to

the state general assembly, recommending technical corrections and

pointing out substantive issues.65 The Minnesota revisor of statutes is required by law to “report to the legislature any statutory changes recommended or discussed or statutory deficiencies noted in any opinion of the

supreme court or the court of appeals of Minnesota” every other year.66

The existence of such mechanisms, however, does not guarantee legislative action. In November 1988, the Minnesota revisor reported on fewer

than ten cases. He recently stopped making recommendations to the legislature, concluding that “the legislature has shown a reluctance to accept

the suggestions for change accompanying the [revisor’s] report. . . .”67

Perhaps because of possible legislative sensitivity to outside direction,

some states have established legislative oversight systems that directly involve legislators in the statutory review process. Alaska’s legislative council, a permanent interim committee and service agency of the legislature,

annually examines published opinions of state and federal courts and submits a comprehensive report of its conclusions, with recommendations, to

each member of the legislature at the start of the regular session.68

Wisconsin has created a statutory law revision committee in the legislative council to consider judicial opinions referred by the revisor of statutes.

The revisor refers to the committee all decisions of any federal district

court or any state or federal appellate court in which Wisconsin statutes or

session laws “are stated to be in conflict, ambiguous, anachronistic,

unconstitutional or otherwise in need of revision.”69 If the committee

believes that the decision carries out the legislature’s intent, it probably

will take no action.7 0 If the committee believes that a matter is
Effects of Legislation on the Workload of the Courts

22

controversial or that a judicial decision is inconsistent with legislative

intent, it may refer the matter to a standing legislative committee.

There are risks and benefits in locating the statutory review function

outside the judicial branch. Drafting a recommendation in bill form and

introducing it can be essential first steps toward its successful adoption.71

Nonetheless, a legislative oversight committee’s success with legislative reforms may depend on the political power of its members. Further, legislative committees are generally charged to look for specific language in judicial opinions and can miss relevant opinions if the courts do not use the

specific language for which the revisors are looking.72 Unfortunately,

judges are not generally familiar with the legislative oversight bodies and

are rarely aware of the need to use specific language to draw their attention to the relevant judicial opinions.73

Legislative Liaison

Many state judiciaries communicate with the legislature through mechanisms other than opinions. About half of the states have a staff person in

the judicial branch who serves as a liaison to the legislature.74 Not much is

known about what these people do or how they function. The Federal

Courts Study Committee proposed that an Office of Judicial Impact

Assessment be created within the federal judiciary and in 1991 such an

office was created by the Administrative Office of the U.S. Courts.75 In

general, an Office of Judicial Impact Assessment could easily serve as a

clearinghouse for judicial communications with the legislature. However,

placing such a mechanism in the judicial branch raises questions about

how the legislature would view commentary from the judicial branch.

Perhaps legislators would view judicial commentary as inappropriate or as

interfering with legislative activity.

In a few states, statutes or state constitutions require the judiciary to inform the legislature directly—outside the text of the opinions—of flaws or

anachronisms in the statutes.76 Pursuant to the Illinois state constitutional

requirement of an annual judicial conference, the Chief Justice of the

Illinois supreme court submits an annual report to each member of the

state’s general assembly, reviewing the work of the courts, suggesting improvements in the administration of justice, and reporting on the results.77

Locating this function in the judicial branch enables the judiciary to decide what message it wants sent to the legislature and ensures that this

message is conveyed. The judiciary’s ability to deliver its message successfully is, however, dependent on its knowledge of legislative institutions and
Interbranch Communications: The Next Generation

23

the relationship between the branches. Study is needed to determine

whether the courts take full advantage of the existing opportunities for

communication and how these processes can be improved.

Interbranch Institutions

Several states have established interbranch institutions, often called law revision commissions or law institutes, to study and propose revisions to the

statutes. Locating this function in an interbranch committee can avoid the

disadvantages associated with the placement of the function in any single

branch. As noted by Robert Katzmann, the use of a neutral body has the

“virtue of feasibility” because it is respectful of each branch’s prerogatives.78 Because both the legislature and judiciary are represented, concerns

about one branch encroaching on the other’s turf are minimized.79

As modern versions of Cardozo’s 1921 proposal for a ministry of justice,80 law revision commissions are generally charged by statute to examine the law for anachronisms and defects, propose needed reforms, and

otherwise consider the potential for statutory improvement.81 They usually

include representatives from the legislative, judicial, and executive

branches of state government, as well as law schools, the bar, and the public. The judicial members of the committee can aid in the identification of

the judiciary’s messages to the legislature. The legislative members can

contribute their institutional knowledge and relationships with members of

that body. Members of the community can contribute specialized knowledge to the development of recommendations and can be influential in

promoting their adoption.

Law revision commissions customarily work on major revisions and

codifications rather than repairing isolated statutes. They have had mixed

success in the states, but their use holds promise.82

Direct Communication

Some commentators advocate the establishment of direct dialogue between

legislators and judges to be conducted outside the context of judicial opinions or the institutional mechanisms we have described. Tenth Circuit

Judge Deanell Tacha, past chair of the Committee on the Judicial Branch

of the Judicial Conference of the United States, asserts that the complexities of our country’s law-making and law-interpreting tasks “cry out for

systematic dialogue between those who make and those who interpret legislation.”83 The late Erwin Griswold, past dean of Harvard Law School,

also expressed the view that direct communication is necessary to spur
Effects of Legislation on the Workload of the Courts

24

congressional action on judicially identified problems.8 4 Wisconsin

Supreme Court Justice William Bablitch advocates ongoing informal communication between individual judges and legislators.85 Others suggest

increasing the use of formal communication mechanisms, such as judges

testifying before legislative committees, conferences on legislative–judicial

relations, and educational programs for legislators and judges.86

The prospect of dialogue between the legislative and judicial branches

raises, in the minds of many judges and legislators, the specter of impropriety and constitutional violation. Progress toward establishing interbranch communication has been hindered by the absence of agreement

about its permitted scope.87 As Chief Justice Robert F. Stephens of

Kentucky has noted, some judges believe it improper to discuss even budgetary matters with the legislature.88 Legislators likewise disagree about

the permissible scope of communication between the branches.89

Much of this hesitancy is probably related more to uncertainty than to

specific prohibitions and may reflect an excess of caution more than a real

legal problem.90 As pointed out by former Oregon Supreme Court Justice

Hans Linde, the separation of powers doctrine applies equally to the

executive branch, and no one would suggest that executive officials are

committing constitutional violations by speaking on pending legislation.91

Some commentators contend that dialogue between the legislative and

judicial branches was anticipated by the framers of the U.S. Constitution

and that the framers found interbranch cooperation to be consistent with

the maintenance of each branch’s individual functions.92 And while little

empirical information is available about “judicial lobbying” at the state or

federal level, it appears that judicial participation in the state policymaking process may be more common, and less controversial, than at the

federal level.93 More information about “judicial lobbying” at both the

federal and state levels is needed.

The participants in the first national conference on legislative–judicial

relations concluded that communication between the judiciary and legislature would neither threaten the branches’ independence nor interfere with

the core functions of either branch.94 Some form of communication is

clearly in order. The question of how to conduct it remains.

The separation of powers doctrine, of course, is not the only guidepost

to proper judicial behavior. ABA Model Code of Judicial Ethics Canon 4,

which attempts to outline the boundaries of proper judicial participation in

extrajudicial activities, seems not only to permit but also to encourage interbranch communication. It expressly permits judges to “speak, write,
Interbranch Communications: The Next Generation

25

lecture, teach and participate in other extrajudicial activities concerning

the law, the legal system, the administration of justice and non-legal subjects, subject to the requirements of this code.” A judge shall not, however,

“appear at a public hearing before, or otherwise consult with, . . . [a] legislative body or official . . . on matters concerning the law, the legal system

or the administration of justice.” The guidelines for conducting any extrajudicial activity are that the activity not “(1) cast reasonable doubt on the

judge’s capacity to act impartially as a judge; (2) demean the judicial office;

or (3) interfere with the proper performance of judicial duties.”95

Commentary to the canon encourages judges, because of their unique expertise, to contribute to the improvement of the law.

On the basis of the separation of powers doctrine and the code, one

might conclude that there are few limitations on ongoing, informal, interbranch dialogue between judges and legislators. Nonetheless, we believe

that judges and legislators should proceed with caution. Judicial participation in the passage of legislation might “cast reasonable doubt on a judge’s

capacity to act impartially as a judge” in cases arising under that legislation.

Furthermore, both the legislature and the judiciary consist of many potentially conflicting voices and points of contact.96 Judges differ as to expertise, background, friendships with political people, credibility on public

policy questions, and ambitions for the future.97 Dialogue between individuals must be contrasted with “institutional dialogue,” where a single

spokesperson, such as the Chief Justice or the Judicial Conference, speaks

for the judiciary. While individual judges may embrace positions different

from those of the Chief Justice or Judicial Conference and should have opportunities to speak out, a more focused institutional approach may be

both more effective and less likely to raise ethical concerns.

* * * * *

We conclude that interbranch communication is a worthwhile undertaking and one that is beneficial to members of both the legislative and judicial branches. Nonetheless, we remain convinced that guidelines for

communication between judges and legislators are needed to avoid friction

and potential legal and ethical problems. Cardozo urged us to bridge the

gap “between the legislative and judicial planets.” The time has come to

begin the next generation of interplanetary adventures.

27

Proceedings from the Policy Session

The following is a summary of those points that were addressed in the oral

presentations or plenary discussions of the policy session and that extend

or supplement the material provided in Justice Abrahamson’s and

Lessard’s written contribution.

Is There a Communication Problem Between the Judiciary

and the Legislature?

Judge Randall Rader of the U.S. Court of Appeals for the Federal Circuit

and formerly chief minority counsel for the Senate Judiciary Committee’s

Subcommittee on Patents, Trademarks, and Copyrights said the answer to

this question is no. He questioned the view that the continued expansion

of federal court jurisdiction by Congress, and the burgeoning caseloads it

has caused, is a result of “too little communication between the branches.

[They say] if Congress really knew what it was doing, . . . it certainly

wouldn’t do it.” On the basis of ten years of experience on Capitol Hill,

Judge Rader said, “There is not a grievous communication gap between

the branches.” Instead, he noted, “the growth in federal jurisdiction is

nothing more than another manifestation of the growth of federal government.”

Emphasizing that he did not disagree fundamentally with Judge Rader,

Robert A. Katzmann, Walsh Professor of Government at Georgetown

University, Brookings Fellow, and president of the Governance Institute,

pointed to certain “problems of communication” between the branches. “I

think those congressional committees that are concerned with the courts

have developed institutional relationships for communication. But . . .

those committees that are not directly concerned with the courts never

think of the issues [they deal with as affecting] the courts.” In his opinion,

“We will all be better off [if we do] whatever we can through judicial impact statements or [other means to] improve understanding between the

branches.”

Michael Remington, then director of the Commission on Judicial

Discipline and formerly chief majority counsel of the House Judiciary

Committee’s Subcommittee on Courts, Civil Liberties, and the

Administration of Justice, said that improving communications between

the two branches should be “our first objective.” He faulted the Federal
Effects of Legislation on the Workload of the Courts

28

Courts Study Committee for missing “a golden opportunity to recommend

institutional reforms for both branches.”

How Can the Role of Judicial Impact Assessments as a Tool

for Interbranch Communication Be Enhanced?

Session participants offered several suggestions for improving the effectiveness of judicial impact assessments as a vehicle for communication between the branches. They recommended that judicial impact statements be

disseminated more widely in order to facilitate communication between

the courts and those congressional committees that do not deal routinely

with the courts. Nancy Potok, deputy assistant director of the

Administrative Office’s Office of Finance and Budget and formerly chief of

the AO’s Judicial Impact Office, noted the “tremendous amount of legislation affecting the courts that comes out of those committees.” She observed that much of this legislation is “not only poorly drafted, but hundreds of [those bills] provide for a private right of action in federal court.”

Maria Schmidt, a senior policy analyst at NCSC’s Washington liaison

office, echoed Potok’s comments, emphasizing that “the most significant

legislation we have monitored has not come out of the judiciary committees.”

Participants also suggested that researchers evaluate the accuracy of

previous judicial impact assessments and use those data to refine subsequent forecasts. According to Michael Remington, “the Administrative

Office should examine impact assessment accuracy for public laws passed

within a five-year period. . . . It would be really nice, now that they are

gaining some experience in this area, to do follow-up.” Samuel Krislov, a

professor in the Department of Political Science of the University of

Minnesota and co-editor of the 1980 National Academy of Sciences report

on the impact of legislation on courts, reiterated this point and cautioned

those making judicial impact assessments “to show the same respect for

[their] methodological tools that [one] expect[s] of normal experts.” “The

purpose is to do better with retrospective analysis,” Justice Abrahamson

said. “Try to determine where you may have gone wrong and then add

that into what you do in the future. At the state level, we don’t have the

staff resources to do a really great job at that.”

Reinforcing comments made earlier by William Jenkins, Jr., assistant

director of the administration of justice issues at the GAO, Judge Rader

said that judicial impact assessments should take into account the effect of
Proceedings

29

legislation on the judicial system in its entirety. Judge Rader recalled that

when he was a congressional staffer, “there was no information on state

court impact. We need statistical analysis that stretches across the entire

system. Otherwise, we tend to shift burdens from one part of our system to

another without influencing anything ultimately.”

Are There Additional Vehicles for Interbranch

Communication?

In this regard, Katzmann described a current Governance Institute project

where judicial opinions identifying problems in legislation are routinely

transmitted to relevant congressional committees for legislative consideration. This project was initiated in the D.C. Circuit at the invitation of the

judges of that circuit, but has subsequently been expanded to include the

First, Third, and Tenth Circuits. In his 1992 year-end report, Chief Justice

Rehnquist cited this project as “a modest experiment [in making] it easier

for judges to alert legislators to statutory drafting problems identified in

the course of adjudication.”

31

IV. Theory Session

Panelists in the theory session of the conference were asked to discuss,

from a social science perspective, judicial impact in the broadest sense—the

ripple effects that legislation has on the litigative landscape.98 As reflected

in the papers that follow, the panelists approached their charge from a

variety of different perspectives.

The first contribution to this session is from Professor Samuel Krislov of

the University of Minnesota. In his paper, Krislov describes the

“theoretical morass” that confronts those who attempt to understand the

effects of legislation on litigation and, therefore, the effects of legislation

on the demand for judicial services. Krislov also offers some practical suggestions regarding how we might extricate ourselves from that morass.

The second contribution to this session is from Frank Munger, professor of law, State University of New York (SUNY) Law School at Buffalo,

and past editor of Law and Society Review; and Joseph Belluck, SUNY

Law School at Buffalo. By offering their assessment of who is advocating

the use of judicial impact statements and why, Munger and Belluck delve

into what they refer to as the “deep discourse” surrounding judicial impact

assessment.

The third contribution to this session is from Jonathan Macey, J.

DuPratt White professor of law, Cornell University. In his paper, Macey

looks at the incentive structure faced by judges regarding the promulgation

of procedural rules, how that incentive structure is affected by the nature

of the litigation brought before them, and the nature of the statutes that

gave rise to the litigation. By analyzing the types of litigation that are likely

to be handled procedurally and why, Macey sheds some light on whether

poor legislative drafting or the subject content of legislation is likely to

have a greater impact on judicial workload.

Finally, the fourth contribution to this session is from Charles Geyh, associate professor of law, Widener University. Geyh’s paper focuses on

what he calls the “competence/credibility paradox” in having the judiciary

produce judicial impact assessments. He suggests institutional reforms that

might provide a solution to this paradox.

A summary of those portions of this session’s oral presentations and

plenary discussions that extend or supplement the written contributions is

presented at the end of this section.

33

Caseloading in the Balance

by Samuel Krislov

Professor, Department of Political Science

University of Minnesota

Introduction

A little reflection or a conference such as this—they are not mutually exclusive—makes it clear that caseload studies have widely divergent purposes. The practical caseload projector is interested either as practitioner,

planner, or kibitzer in the consequences for the court system. The theorist

is interested in the opposite side of the equation—using litigation as a hard

bit of datum to measure the volatility of social actions. The two roles—as

this conference indicates—may be combined in one researcher. But both

approaches contain considerable and difficult problems. Personally, my interests are theoretical and sociological. I have done some practical projects,

but with a sense that theory will be advanced by being tried in the crucible

of real experience.99

The observer–technician of affairs for court purposes superficially seems

to have an easier row to hoe. Existing caseloads must be projected to anticipate future needs. As with any enterprise, the growth of demand requires

new capital expenditures and personnel. So extrapolation of “consumer”

needs is required. Autoregressive models of a relatively simple sort,

modified to include basic changes such as population growth, will usually

approximate reality in the short run. So indeed will be the simplest form of

the approach—straight-line projection of past caseloads, in most instances.

These particular practical shortcuts work most of the time, but they

partake of the rigor of projecting college admissions from high school attendance or even predicting today’s weather from yesterday’s. Projecting

trends from the past seems to work ceteris paribus. But if one is uncertain

about the nature of the parameters, one is equally uncertain about when

these unknown factors have altered. It is easy enough to offer explanations

after the fact when the predictions fail, but it is the future, not the past,

that such efforts are aimed at.

New developments have effects that transcend predictions about

caseload. But numbers alone, even when correctly projected, are only the

beginning of the inquiry. Since cases are not born free and equal, projec-
Effects of Legislation on the Workload of the Courts

34

tors try to estimate case types and the court time required for each type.

This complicates matters by making the projective task a multiple one,

with intricate calculations as to each type of case, plus an appropriate

“average time” for each type. At least one expert at case-type-time, Steven

Flanders,100 has grown ever more skeptical of the venture of finding

“average time.” But changes in frequency of case types over time are even

more elusive. As pioneered by Friedman and Percival,101 and demonstrated

by a generation of studies (including especially that of Wayne

McIntosh),102 the evolution of issue-areas follows patterns of social development. Fur-trapping cases are replaced by environmental impairment

cases. The caseload-time projections are therefore forced to move toward

the approach of the theorists.

The latter, though, have experienced even more difficulties. Attempting

to understand caseload as a function of social conditions involves studies

over time or cross-sectional studies over jurisdictions, or sometimes both.

This assumes at a minimum that the definition of a case is a more or less

precisely comparable unit. Intuition and experience suggest this is far from

the reality.103 As to the independent factors involved in the equations, such

as stages of development or frequency of interactions, surrogates for most

of them raise severe problems, especially for cross-cultural studies.104 The

deplorable inadequacy of historical data in many systems, especially ours,

creates problems for over-time analysis. More recent work suggests that

these problems can be patiently overcome or their effects at least limited,

but complexities abound, and the closer the analysis by limiting

jurisdiction or time span, the less striking the result.105

Finally, we are challenged to assess the impact of new factors, especially

legislation, on court loads. The normal method is simply to find the closest

known parallel and to substitute that known pattern with the new. Little

follow-up of such projections has been undertaken, which almost certainly

has been a prerequisite for the popularity of the method. Combining the

almost hit-or-miss approaches compounds problems.

We have come a long way in understanding these methods and their

limitations. How do we bust out of this circle? That is the focus of this paper. The message here remains that we are unlikely to make a major breakthrough. But advances to date seem promising—and short-run predictions

sufficiently accurate—that work should continue and even increase in the

practical world, as well as in the theoretical realm.
Caseloading in the Balance

35

Theoretical Morass

Sociologists of law have long argued that litigation—“the trouble cases of

society”—logically can be charted as a function of frequency of interactions and propensity to litigate.106 As societies become more complex and

less integrated, disagreements are more likely to arise and are less likely to

be resolved by informal means—the consequence of increasingly

impersonal relations.

Efforts to correlate the rise of caseloads with sociological factors have

been tried with only modest success.107 This is not surprising because

technical obstacles abound. There are good data available here and there,

but definitions of cases and their classifications are, nonetheless, subjective

and change with the times.

But the largest problem in caseload projection has already been alluded

to: The sum total of potential litigation in a society is as amorphous as its

population’s needs for medical help. The calculations traditionally used by

legal sociologists at best track the “demand side” litigation potential, but

actual cases are also severely limited by the costs of litigation. Societies

control the costs—access to the courts, time involved in the proceedings,

and need for lawyering and consequent charges—while judges control the

pace of litigation and encourage or discourage proceedings through both

doctrinal and procedural decisions.

The calculation of the costs and benefits of going to court is not an easy

one; if it were easy, settlement would be the most efficient outcome in almost every case. However, sometimes there are reasons to litigate beyond

the immediate case. Lawyers are the gatekeepers: They must advise litigants, and they must also calculate the potential value of the case and their

own expenditures of time and effort.

The data—as imperfect as they are—suggest that disputes are a standard and unpredictable by-product of normal transactions, but that litigation results from a vector of dispute and opportunity, and that it is not

merely the law that tries to avoid concern over trifles. There are many

ways to resolve conflict. Mediation by clergy, ombudsman, throwing dice,

and splitting the difference are just a few “alternative dispute mechanisms”

that societies were employing long before legalists put a fancy name on so

basic and ubiquitous a social function.

Furthermore, issues change as society changes, so that straight-line

projections are hazardous, if not foolhardy. McIntosh, following

Friedman’s basic “A Tale of Two Counties” research, has documented the
Effects of Legislation on the Workload of the Courts

36

decline of fur-trade disputes in the Missouri courts, and one hardly hears

of a case involving horse-drawn carriages in modern times.108 Change does

not, however, have to be a result of technical or ecological transformation.

Although still on the books in many states, breach-of-promise suits are so

obsolescent that when one was actually filed a few years ago, it attracted

national news coverage.109

The evolution of new causes of action is particularly problematic. Civil

rights issues for women and minorities have regularly produced more cases

in the federal courts than originally predicted, but Congress has retroactively approved this trend by adding provisions encouraging even more

widespread use. The “black lung” legislation, which was originally designed to entitle a very small group to sue for damages, went far beyond

that in scope. Conversely, the so-called “lemon law” for auto purchases

fell into disuse because neither the consumers who would have had to utilize the cumbersome process nor the potential lawyers found it economically profitable.110 Similarly, small claims court, intended for the use of

litigants having small sums at stake, has become in many jurisdictions the

place where credit departments file all their claims at one time, reducing

their own costs and largely converting the court into a collection agency.

Why are predictions so fallible? First of all, basic assumptions may be

incorrect. Experts at the turn of the century projected thousands of deaths

per year by airplane, assuming the right to operate a plane would be as

widespread as the right to have and operate an automobile. Marx assumed

only labor created value and, therefore, capitalists would drive down

wages, killing the demand for goods. In fact, capital investment increases

the productivity of labor, driving up wages and increasing consumer demand.

The second major source of error is the flow of unexpected events,

which may include measures undertaken in response to the predictions.

Cardozo’s famous decision on McPherson v. Buick influenced product liability development but not for the auto industry where insurance proved

a better social solution.111 Marx’s writings helped develop a stronger trade

union movement to protect workers’ income. And societies adjust court

caseloads when they see that courts are swamped. Indeed, courts

themselves are not helpless. The most dramatic examples of this tailoring

of load and jurisdiction are found in Japan, which has altered requirements

for litigation drastically whenever caseloads increase, maintaining an almost steady state of court pressures for decades.
Caseloading in the Balance

37

A Review of Previous Attempts at Caseload Projection

Increasing demand for court services coupled with declining public resources have greatly elevated the significance of predicting and explaining

court caseload trends. Projections of future court caseloads are vital in

planning and constructing new court facilities, budgeting for operational

costs, assessing staff requirements, and generally meeting the demand for

court services. Despite this increased need for accurate caseload trend research, little agreement exists as to what specifically causes variation in

caseloads over time or how these changes should be properly modeled.

Most attempts to explain caseload variance have been based on the theory

that caseload development is dependent exclusively on factors external to

the court structure, such as population, income, and economic development.112 Within this framework, caseload research has been oriented

toward identifying relevant explanatory variables, obtaining accurate measures or proxy measures of these variables, and then correlating these with

caseload. This external approach to studying caseloads ignores internal

determinants of caseload variance: court organization and management. It

has become apparent that any complete discussion of caseload variance

not only must include local environmental measures, but must also consider the reaction of a given court system to changes in its external environment. Courts are no longer considered passive actors in the management of their caseloads. As economic and/or population pressures create

demand for more court services, a court system will and must react to

these pressures and alter its behavior to best accommodate demand.

Caseloads, then, are best explained as the result of a complex and interactive relationship between environmental or external pressures and a given

court system’s internal response to those pressures, which feeds back upon

the demand for court services.

The underlying activity theory argues simply that caseloads change

along with changes in the level of underlying activities that produce the

cases. Litigation is a function of the level of disputes: Criminal cases are a

function of the overall crime rate, divorce rates are a function of marital

strife. It is a simple thesis, assuming a largely mechanistic transfer effect

between social events and caseload levels, modified by intervening factors

that have not been systematically assessed. Among these intervening factors are the expansion of constitutional rights, changes in court procedures, the availability and cost of legal services, and the level of legal certainty within a particular issue area. As such, the overall pattern of
Effects of Legislation on the Workload of the Courts

38

caseload growth should not be linear, but rather curvilinear in shape, with

rate-of-growth fluctuations that are possibly cyclical, rather than monotonic.

The normative effects theory of caseload development states that law

increases inexorably over time due to increasing social complexity.113 As

society becomes more complex, there is less community consensus and a

decline in informal mediation of disputes by society. Social development,

then, implies an ever-increasing need for legal intervention. This theory

predicts that law in an overall sense will increase over time.

However, court caseloads do not proceed along those linear paths.

Court caseload growth is again theorized to be curvilinear, with the main

explanatory cause being the court system’s inability to handle ever-increasing demand for services. As litigation in a particular field increases, courts

can be too slow to respond to the demand. This, in turn, produces an

overriding incentive for disputants to avoid the courts and seek private solutions to what would have been lawsuits.114 The court system then begins

to perform less of an adjudicative function and more of an administrative

one, as it serves merely as a ratifier of privately ordered solutions. Increases

in caseload are a product of increased demand; however, given the court’s

inability to handle such demand in an efficient manner, the overall effect is

not directly correlated.

Both of these approaches advance a variant of social modernization

theory: As society becomes more complex, demand for court-like services

increases.115 Underlying activity theory directly relates changes in the

volume of cases to the volume of activities in society that produces the

cases. Normative effects theory views caseloads as a dysfunction of

increasing complexity and differentiation in society. Each predicts a

slightly different pattern of caseload development, but both project a

nonlinear or even curvilinear pattern of growth, with the strong possibility

of cyclical change. This suggests that any attempts to model caseload

variation will be complex. A common factor in these approaches is the

concept that courts are generally passive and that factors external to the

system determine caseloads.

Research conducted on court caseloads has weakly supported the predicted relationships.116 Despite increases in legal actions and an increasingly legalistic society, court caseloads do not consistently increase or behave in a predictable manner. In addition to environmental factors that affect caseload development, there are many internal developments that

shape caseloads. Social and legal actors take preventive action to avoid
Caseloading in the Balance

39

potential legal proceedings by incorporating court decisions into ongoing

social and organizational policy.117 For some types of disputes and legal

matters, alternative forms of dispute resolution are employed.

Organizational factors intervene between the environment and court

caseloads by affecting the definition and transformation of disputes into

court cases. Courts themselves have a role in the strategic calculus because

they are social institutions that may shape their own functions.118

Scratching One’s Eyes Out Systematically

One breathes a sigh of relief on finding that after a decade and a half the

dominant conclusion remains that of our National Academy of Sciences

(NAS) committee: We are neither empirically nor theoretically in command

of an approach.119 While such conclusions are a virtual cliché in all aspects

of social science, one fears prematurely stifling growth. But even the most

optimistic and diligent scholars have not been able to contradict or—

alas—transcend us.

It is more gratifying to find that the two most theoretical pieces in

Frank Munger’s special issue of the Law and Society Review follow my

theoretical arguments in Boyum and Mather (1983).120 Sanders, explicitly,

and Reiss, independently, reason along my lines, that caseloads are

theoretically too rich to be captured by monotonic equations.121

The empirical counting problems have been summarized earlier. We

shall have to try to formalize the reasons why cleaner data still will not resolve our major dilemmas.

The Durkheimian notions seem to produce a relatively simple equation:122

Caseload(t+1) = Caseload(t) x (Transactions(t+1)/Transactions(t))

Closer reading and thought make the equation more difficult. An increase

in societal complexity results in greater mechanical over organic solidarity

(or, in other parlance, greater impersonality). Thus, as transactions increase, the rate as well as the absolute number grow.

Since social transactions are, to understate dramatically, innumerable

by any known method, population increase is used as a crude surrogate.

To attempt any cross-cultural study with national population data uncontrolled for industrialization or other commercial growth seems unjustifiable. So some other surrogate—say per capita income—is generally
Effects of Legislation on the Workload of the Courts

40

introduced. Within-society correctives may throw in business-cycle data as

well.

The surrogate for growing impersonality also tends to be population

density. But this tends to be a poor measure of social attitudes conducive

to litigation. Those who favor a social-cultural, nonlinear notion might incorporate growing reliance on legal mechanisms under such a rubric, but

measuring litigiousness independently of past caseloads is a literally confounding task.

Thus, the equation already elaborated has grown considerably:

Caseload(t+1) = Caseload(t) x (Population(t+1)/Population(t)) x (Economic

Indicators(t+1)/Economic Indicators(t)) x (Litigation Trend(t+1)/Litigation

Trend(t))

The Other Eye: Cases Are Not Generated Autonomously

Toharia found, as noted, that the modern-era cases did not multiply as

rapidly as the population. But quasilegal actions absorbed an increasing

number of cases. He reasoned that increasing social specialization affords

competitive shopping and cheaper substitutes for court action. Thus, there

is a denominator that cuts into those matters as well. For want of a better

term, we shall designate it “access costs.”

It is usual to speak of Toharia’s having established a curvilinear pattern

for caseloads. More precisely, his Spanish data establish a shift in the

growth rate of cases, which he persuasively argues was due to the explosion of notorial actions.

The suggestion that either type of structure will grow in some smoothcurved way is extremely doubtful at best. Furthermore, what is measured

is a difference in cost between two resolution processes. That difference

would often be quite decisive (resulting in lumpy rather than accretionary

shifts).

Now the equation would read:

Caseload(t+1) = [Caseload(t) x (Population(t+1)/Population(t)) x (Economic

Indicators(t+1)/Economic Indicators(t)) x (Litigation Trend(t+1)/Litigation

Trend(t))]–Priced Out Cases

But Toharia’s adjustment opens up a Pandora’s box. Causes of litigation are socially as well as economically defined. As Haley has persuasively
Caseloading in the Balance

41

argued, Japanese caseloads have been determined by sharp changes in

court access when litigation has increased, as well as by tight control of the

number of barristers.123

Thus, an exogenously defined equation in which law products called

cases are generated by an external world requires not a simple, but a complex corrective. Cases are subtracted or added not merely because developmentally cheaper institutions arise, but for many other complex motives.

Courts influence loads by restricting access, as do legislatures. Lawyers’

fees go up (or even down) in related but not determined ways. The diversion equation seems as complex as the original basic one.

Furthermore, the new wrinkle, the new perturbation, need not move to

decrease load; the literature happened to unravel in that way. But, again,

as this conference indicates, the more consequential questions tend to come

with moves that increase caseload. These are by and large mirror images of

decremental steps. New causes of action may be generated by legislation,

court decisions, or the flow of events. Lawyers’ fees may drop in absolute

terms, or alternative decision structures may become less popular.

This part of the equation, then, would resemble the decremental equation, except that it adds rather than subtracts numbers.

More Research Attacks and Central Notions

Robert Kagan’s work challenged these notions in quite different ways.124

He demonstrated that declining industries easily generated increased

litigation as new legal problems arose. Furthermore, it is logical that in

such industries there is a decline in solidarity; sauvez qui peut is especially

resonant on a sinking ship. Conversely, a sharp increase in caseload may

focus attention on a problem and promote a nonlegal solution, as his study

of debt collection demonstrated. Increased litigation may contribute to its

virtual disappearance.

In the somewhat woolly context of Friedman’s concepts of the evolutionary nature of court issues,125 Kagan’s precise findings pack even

greater poignancy. The studies of Friedman and Percival show that case

distributions conceal both case evolution from divergent social issues and

cases processed differently by courts.126 The change in both of these case

types will produce distinctive case numbers that have only tangential relationships with the numbers produced by decaying issue areas. Marc

Galanter has focused our attention on this matter with his felicitous term,

“case congregations.”127 But this problem with the Durkheimian venture
Effects of Legislation on the Workload of the Courts

42

was already on the table with Friedman and Percival’s work.128 Galanter

illuminates other issues as well in his article, which is not even centrally

addressed to the projection issue.

The combined effect of this literature is to strike at the core of the

equation. In some sense, increased social interaction likely breeds more

disputes. But those disputes are processed through a complexity of

“naming, blaming, claiming”129 in which one dispute may be processed as

thousands of claims and thousands, perhaps even millions, of disputes

handled in a single case. The case-producing mechanism has too many

contortions of its own to suggest that the problem is merely one of cleaning up the data.

In short, the main thrust of much of the work of the law-in-society approach has operated to make caseload as science a long shot rather than a

perfectible and perfecting mode of research. This parallels the fate of the

social-indicators movement130 and may prove yet another epicycle in the

constant churning of paradigms in the social sciences. But for reasons advanced above, I do not think a turn of the wheel will restart the grand enterprise, and, therefore, I encourage smaller steps.

Where Do We Turn? Some Modest Proposals

In both the NAS report and the Empirical Theories131 piece, I strongly

urge a continuation of practical caseloads and theoretical efforts. As to the

first, there is little chance they would not continue and less reason to discourage continued practical attempts. Even on the theoretical level, the

cross-national or time-series efforts emerge as worthwhile, with multiple

purposes.

Do What We Can

On the practical level, caseloads have utility as planning instruments,

without a need for sharp precision. The tolerable range of error is quite

considerable, and alternative methods of analysis—e.g., extrapolating

judge-need from previous expansion of judge-need or self-evaluation of

time burdens by judges—are subject to much grosser and evident

deficiencies.

Boyum and I have also argued—again without real disagreement from a

decade of writers—that caseload extrapolations do not do badly in the

short run.132 Most of the time that is quite good enough for planning

purposes, of course.
Caseloading in the Balance

43

In summing up this practical situation, I would like to push our point

further. In the first place, pursuit of practical objectives with weak or

nonexistent theory is not unknown even in the physical sciences. The late

Nobel laureate Richard Feynman notes in the preface to his lecture series

on physics that we have known the pressure needed to force a specified

amount of water specified distances for thousands of years—at least since

Roman times—but still do not have an adequate theory to explain our

known results. Similarly, only recently have scientists found previously unknown aspects of bumble bee anatomy to explain how they could fly in

what had seemed defiance of aerodynamic theory.

So caseloaders need offer no apologies if they proceed on ad hoc efforts

to project as closely as possible and to fine-tune their “adhockery” with

new and innovative adjustments and refinements. If it works, we probably

will be able to understand why and learn from it. If it doesn’t work, the

richest theory will not resolve it.

It seems to me that there also is a refined answer to the question of why

practical caseloaders can come close to the mark even when using the

crudest measure of all, simple population growth. If we look at the formulae developed earlier in this paper, it seems apparent that in the short run

the various manipulations will result in multiplying by something close to

unity, a little more per annum most of the time, a little less in bad years.

Whether these formulae capture a real essence or not, they will come close

to saying population drives the equation for any short interval. But closer

inspection will, in fact, probably improve projections for as long as such

efforts might work.

It is tempting—without experience and truly off-the-cuff—to suggest

that planners might well start with the simplest of models and work their

way to more complex ones. Ultimately, as with economic models, a simple

test is available in its efficacy or failure. Tinkering for accuracy may help

us to understand the problem of mapping what is going on.

Improving What We Have

The praiseworthy efforts of Frank Munger’s special issue of the Law and

Society Review are a model for continued efforts in the area. Those studies

supplemented theoretical discussions with efforts to show how data can be

cleaned up to permit over-time analysis. This mainly involved identifying

case types and eliminating or validating sharp data changes as indicating

real events. Similar clarification of cross-country data would be extremely

useful. Galanter has tried to advance some of this in his treatment of litiga-
Effects of Legislation on the Workload of the Courts

44

tion, assembling data about comparative personnel and litigiousness and

using informed common sense to verify who the outliers are in various categories. This impressionist sifting of data suggests careful empirical work

might be advanced by similar, more precise, and clearly time-consuming

efforts.

The most important need is for us to understand when and why case

types change. Short of this breakthrough, charted time series will be interesting but nonadditive.

The continued improvement in cross-state compilation of data may

prove to be the most useful development of all. Still, so far the improved

dataset has largely permitted little more than general appraisals of narrow

problems and trends.

Cross-national comparison provides greater variability, which often

permits better teasing out of relationships. But it also introduces vexations

through political and administrative variations of greater variability and

often of greater subtlety. It is important to support and appreciate the

difficulties of cross-cultural studies to supplement and rival an emphasis on

more specified and constrained time-series analysis.

I have noted the complications introduced by recognizing the driving

power of government and courts in increasing or decreasing caseloads.

These are devastating perturbations from the standpoint of a social science

of the system; obviously, the driving force of increased social activity may

be offset by a decrease in caseload that is set by administrative unloading

of cases, as well as the opposite possibility—declining socially generated

cases obscured by inloading. These multiple possibilities are discouraging,

indeed.

But the practical study of caseloads might well be enhanced by these efforts, especially since the perturbations of most interest are well defined

and of definably different types. In exploring perturbations, if we can isolate standard effects while specifying causes, we may learn what we need

to use at a practical level, even though we still will not understand the total

relationship.

Deliberately decrementalist decisions may be the most promising areas

of study. Presumably, we have a known category of court clientele, and

efforts to discourage their legal activity are reasonably defined. This is by

no means always true, but the potential for careful study is there.

Incrementalist efforts are also possible. When an action augments and

builds on the past, it can be projected by some extrapolatory method.

More intriguing are new developments where, as noted, the usual model
Caseloading in the Balance

45

has been to find the nearest approximation and go ahead with similar calculations. Indeed, it is difficult to find fault with this approach.

Perhaps the most significant finding of the Justice Department’s major

grant for developing a model assessment is that the researchers consistently

redefined their model in narrower and narrower terms and still could not

develop a consistent predictive model. The task is a great one, and the

modest efforts of trial and error involving simple one-step projections on

limited issues seem more in keeping with what we know. A databank of

what has been tried and how well it has fared might supplement these

modest goals.

The realization that the quest is more complicated than it had seemed

does not nullify further effort. We have learned a lot by understanding

what we don’t know, and though those paths uncovered seem more tortuous and ever-less simple than before, they still offer the promise of leading

us to greater understanding. We will stumble forward rather than soar.

P.S., Some Vague Thoughts on New Federal Legislation

Applying these principles to new legislation yields meager results. Of

course, that is why I argued against any blanket impact statement, and it

remains a convincing argument in my eyes.

The cleanest case is the perennial proposal to end diversity jurisdiction.

This is our purest type of perturbation with known current values. It is assumed that roughly all such federal cases will become state cases, but some

filings will be discouraged. It is difficult to conjure up reasons why the possibility of removal has operated to discourage filing in the past, but no

doubt in real life everything happens. Those esoteric circumstances should

be outweighed by the more commonsense type problem: Plaintiffs file in

federal court because they believe they will do better there. Some will not

want to pursue state proceedings. Thus, on net we can make small adjustments depending on which party prefers the federal forum but can assume

that current filings are a ceiling (adjusting, of course, for other growth factors).

Should diversity be ended after a century of such recommendations, we

could test this notion to get some sense of the costs over a few years, estimate how much savings there had been in federal courts, and see what the

increased burden was to the states in terms of numbers. Processing time,

on the other hand, would not be readily measurable. States may have

economies of scale in handling such proceedings. Conflict of law issues, on
Effects of Legislation on the Workload of the Courts

46

the other hand, may be more perplexing and complicated at that level. The

federally managed case style may better fit key corporate-based diversity

problems and lead to quicker disposition, or the reverse may be true.

Adjusting the jurisdiction complicates predictability. While plausible

claims for increased jurisdictional dollar limits are not hard to develop, increased limits have historically priced out some cases. Legal contortions to

arrive at jurisdictional amounts take time and money, and too implausible

an argument erodes credibility ab ovo. We would look to previous experience to guide us, but, in fact, dollar amounts are not constant; lawyers

may have altered their calculations and so may have clients. Educated

“guesstimates” will be as helpful as past history since we are predicting

elasticities of demand.

New sources of litigation are less predictable but are sometimes

amenable to analysis. Making the use of a firearm in a crime a federal offense can be reasonably estimated as to maximum effect. It will not tell us

when prosecutors will implement the potential. The raw numbers are staggering for the tiny federal system. No doubt U.S. attorneys would try to

exercise restraint, but even so, the further criminalization of federal courts

would be overwhelming.

The proposed family violence tort law is intriguingly unpredictable.

Action would be permitted in one venue or the other, with no possibility of

removal once filed. It is difficult to predict potential numbers, since

“violence” might be held to include what is euphemistically called “rough

sex” or repeated threats, or a whole range of behaviors. The propensity to

sue is also conjectural. Most of these cases will arise from victims in close

relationships with perpetrators, and the worst victims will have the least

desire to revive such events. The most persistent causal predisposition—revenge motives—is also the most problematic, and lawyers will be leery of

taking on cases. Whether federal courts (where lawyer fees are higher) or

state courts are more friendly will also be problematic.

The best heuristic will probably be sexual harassment cases. But that is

probably not as good a model as it appears.
47

Judicial Impact Statements: Unpacking the

Discourse

by Frank Munger and Joseph Belluck

Law School, State University of New York at Buffalo

Proposals to require judicial impact statements as a means of regulating

the effects of legislation on the federal courts have been debated at least

since Chief Justice Warren Burger’s 1972 state of the judiciary address. We

have to begin by asking why these proposals are still being discussed.

Unfortunately, one reason is that academics like us make our living being

skeptical about practical proposals and are almost always willing to write

another article—the more like the last, the better.

In this paper, we will describe more substantive reasons for the continuing debates about judicial impact statements and relate them to ideas

about how the courts are affected by change. Then we will discuss a number of perspectives that are closer to what we think is really being talked

about in what we call “judicial impact statement discourse.”

To return to the question as to why we are still talking about judicial

impact statement proposals, there are at least two sharply contrasting reasons for finding the continuing discussion surprising.

First, we could start from the premise that judicial impact statements

are obvious losers. To many, it has been apparent for some time that we

lack an effective understanding of the impact of new or existing legislation

on the courts (notwithstanding brilliant discussion of the evolution of

court caseloads by Marc Galanter and others).133 The National Academy

of Sciences report said it all in 1982.134 For a decade we have not been

able to agree even on the existence of a litigation explosion, so why should

we expect to be able to determine the marginal effect of one among

literally dozens or perhaps thousands of factors affecting the number of

court cases? Even if we understood cause and effect, we do not have the

massive database needed to predict effects, or reason to expect sympathy

from Congress for paying to collect these data. To continue to discuss

judicial impact statements as if we were at the forefront of some breakthrough in this theoretical and empirical thicket is sheer self-deception.

Therefore, we should have stopped wasting money discussing these proposals long ago.
Effects of Legislation on the Workload of the Courts

48

Another reason for finding this continuing discussion both interesting

and surprising starts from the premise that judicial impact statements are

obvious winners. We all think that knowing the effects of legislation on the

courts is important. If so, the crude forecasting possible in 1993 is like the

early days of economic forecasting. The uncertainties of economic forecasting did not undermine our efforts to predict economic change but rather

led to enormous long-term efforts to improve our methods. Therefore, we

should have stopped wasting time and money discussing the purposes of

judicial impact statements long ago and begun long-range projects for the

development of indicators.

We believe that both of these arguments against continuing the discussion of judicial impact statements are wrong, and, therefore, the discourse

about judicial impact statements is located on a middle ground. The discussion is not strictly about measurement. On the other hand, the discussions obviously do not start from a shared assumption about the desirability of judicial impact statements. Both conclusions suggest that more is at

stake in this debate than simply wanting to predict the impact of legislation on the courts and about the technology of measurement.

What we propose to do next is to describe and then examine in greater

detail some of the stated and unstated reasons underlying judicial impact

statement proposals.

Theories of Courts and Change

The discourse about judicial impact statements is a discussion among insiders—namely, judges, court administrators, and legislators. The problems of the courts might be described and remedied in very different ways

by litigants or the legal profession. Some time ago, Austin Sarat argued

that it is perspective alone that determines whether rapidly rising caseloads

are understood as evidence of the success or the failure of the legal system,

as evidence of its success in creating and giving effect to new rights or as

evidence of its failure to find more appropriate answers to problems of social order and social conflict.135

What the insider perspectives seem to have in common is their depiction

of courts and society as out of sync, suggesting that in recent times things

have changed significantly, ending what was previously a more natural and

effective relationship.

It is helpful to remember that officials of our own time are not the first

to see a problematic relationship between a society undergoing rapid
Judicial Impact Statements: Unpacking the Discourse

49

change and the administration of a government charged with maintaining

order (particularly through its criminal and civil justice systems). Indeed,

the efforts of the classic social theorists of the nineteenth century to explain precisely this kind of relationship and its limits have shaped our own

vision of change. Contemporary versions of those theories may explain

some of the insiders’ discourse on court reform.

Theories of change provide four perspectives on the effects of social

change on the courts.

1. Increasing Complexity. In the views of many, the engine of change is

the increasing complexity of society, the presumed universal and inevitable

evolution of society driven by differentiation in the relations of production.

Increasing complexity accompanies, indeed marks, the modernization of

any society. In turn, increasing intervention by government is required to

order and rationalize the emerging and changing relationships among

members of the society.

Other than feeding apocalyptic views of the impact of change on the

courts, does such a simple theory of change tell us anything useful about

proposals for court reform? If complexity is increasing, and has been for a

hundred years, what’s new? How should the courts in 1993 respond to

such an ancient problem? We might begin by observing that unless the nature of what courts do is being altered in some important way, the simple

and appropriate response to the increasing scale of society seems to be the

one suggested by Cornelius Kerwin, namely, to increase the number of

courts and judges.136

Increasing complexity has more specific implications than this, however, because increases in the scale of what courts do also change qualities

of courts that are valued by our legal and political culture. In particular,

the role that judges are expected to play has undergone a qualitative

change. Judges are required to move well beyond traditional judicial roles

when they manage a large staff, coordinate their activities with a large

number of colleagues, or administer justice in what is meaningfully characterized as a judicial system rather than a simple court. Thus, the proposals

for judicial impact statements and other types of court reform may respond in part to such tensions created in the role that judges play in a

changing system rather than to the increase in the quantity of adjudication

alone.

2. Rationality Crisis. Other versions of the increasing complexity theory

claim that the late twentieth century has experienced unique political and

legal crises affecting the courts. Europeans seem to have a knack for such
Effects of Legislation on the Workload of the Courts

50

grand theorizing, and some of this theory has been helpful. Specifically,

two of the greatest recent European theorists, Niklas Luhmann and Jurgen

Habermas, both argue that what is really happening is that the legal system’s capacity to rationalize and impose order is being outstripped by the

complexity of society.

In historical terms, the authority of the courts derived from their separation from the specific concerns of particular social interests.137 Courts

applied generalized (autonomous) standards for the imposition of authority to different aspects of social life. Thus, the general law administered by

the courts rationalized and legitimated the exercise of authority throughout

the society.

However, as society and its institutions have become more and more

diverse, different parts of society operate in very different ways. The general rules developed by the courts are less and less adequate for resolving

conflicts deeply embedded in the unique norms appropriate for particular

activities of society. In brief, law loses its bite, creating a “rationality crisis.”

3. Legitimation Crisis. A second version of the crisis of modern law has

received greater play in the United States, namely the so-called

“legitimation crisis.”138 If the rationality crisis proclaims the failure of the

courts to supply appropriate law, the legitimation crisis problematizes the

changing quality of the demand for law.

According to this view of the impact of complexity, the growth of the

welfare state has been driven by the demand that the state respond to an

ever-expanding range of demands for equity from different social groups.

Yet, the more particularized the benefits granted by the state to a group,

the less neutral and legitimate the state itself seems to be. Thus, every legal

victory by an interest group, in courts or legislatures, is viewed as a partisan decision with a corresponding incremental reduction in the legitimacy

of the decision maker. The apparent politicization of formerly neutral,

autonomous functions of government has, therefore, created a legitimation

crisis.

The cultural shift Lawrence Friedman has described in twentieth century America as giving rise to an expectation of “total justice” may be one

aspect of this larger picture of crisis.139 Courts are being asked to create

and enforce rights that meet a broader and broader range of needs of

American citizens. Granting rights to some that exceed the expectations of

others only feeds the perceptions of illegitimacy that inform reporting on

much contemporary rights litigation.
Judicial Impact Statements: Unpacking the Discourse

51

In the Progressive Era, lower court reform domesticated the threat from

the rising tide of immigration and urban growth. During the New Deal,

the creation of administrative courts and a more instrumental theory of

government addressed the collapse of the economy. Since the 1960s, in response to increasing demands for inclusion and equity for which political

support has been mobilized, court reform proposals have in part attempted

to clear the federal courts of large numbers of less important cases thought

to impede more important traditional functions of orderly conflict resolution and integration of diverse values and opposing social interests. Each

of these proposals for major court reforms illustrates a response to concerns about the legitimacy of the political system itself, the last (post1960s) being the crisis of demand described by Habermas and others.140

4. Professional Projects. A fourth theory concerns the evolution of professional projects. Insiders, such as lawyers and other legal professionals,

have had a strong interest in court reform. Lawrence Friedman, in yet another perceptive essay, observes that legal professionals, like lawyers and

judges, promote reforms in part to maintain a public image.141 This is so

because using expertise to ensure the quality of legal and judicial services is

part of what justifies the autonomy granted by law to self-regulating professionals.

Judges are a distinct subgroup of lawyers with distinct professional interests. But courts are the domain of other professionals as well, namely

court administrators. Like lawyers, judges and court administrators are

professionals whose power is derived in part from public respect for their

unique expertise. In turn, like lawyers, they must visibly display their concern for improvement of the courts. Such expressions of concern are perfectly appropriate. Thus, without being at all disparaging, one of the motives for discussing judicial impact statements may be the generalized interest of judges and court administrators in publicly demonstrating their

commitment to improvement of the courts, irrespective of crisis or change.

We would argue also that the increasing involvement by judges and court

administrators in court reform is not the result of the growing numbers of

court professionals alone, but the result of the development of internal

court system structures, such as the Federal Judicial Center and the various

administrative councils constituted by members of the federal and state judiciary, that have given new voice to the impulse to reform.

In sum, significantly, none of these theories attributes the cause of reform directly to the rising number of cases. Because of the increasing scale

of adjudications, judges are being asked to play new, nontraditional roles
Effects of Legislation on the Workload of the Courts

52

in their courts, not simply to do more. Because of a perceived rationality

crisis, courts are being asked to do what they do not feel competent to do,

and because of the apparent legitimation crisis, they are involved in increasingly politicized adjudication. Finally, court professionals benefit from

being publicly critical of the system that delivers their services.

Judicial Impact Statements—The Discourse

Buffalo News story 3/27/93: A man who had waited 11 years

for trial of his age discrimination suit collapsed and died in the

lobby of federal court. “The death is only the most dramatic illustration of a severe case of backlog in the federal courts” declared the News.142

The concept of “impact” is like the concept of “efficiency.” “Efficient” is

an administrator’s way of saying something is good, but the term often

means very different things in different contexts. The movements for court

reform described at the end of the preceding section, each defined

efficiency differently: In 1920, it meant incorporating more cases in the

court system; in 1935, it meant reducing the difference between adjudication and administration; and in 1969, it meant casting unimportant cases

out of the federal court system. Similarly, impact means different things in

different contexts.

Many interests underlie proposals for the use of judicial impact statements. In 1982, Boyum and Krislov found that “[t]he idea of judicial impact statements has attracted judges, court administrators, researchers and

academics, and occasionally legislators”143 To date, there has been little

analysis of what lies behind proposals for judicial impact statements. The

idea clearly parallels Chief Justice Warren Burger’s court reform proposals.

In addition, the Council on Competitiveness included a judicial impact

checklist in its fifty-point judicial reform plan, and Aetna Life &

Casualty—a strong supporter of recent civil justice reform efforts—has

cosponsored research on the topic at Yale Law School.144 Currently,

however, the primary supporters of judicial impact statements are federal

and state judges, court administrators, and professional organizations.

Both the Federal Courts Study Committee and the Judicial Conference of

the United States have publicly supported judicial impact statements, as

has the American Bar Association’s Committee on the Judiciary and a

number of individual judges.145
Judicial Impact Statements: Unpacking the Discourse

53

There appear to be many reasons why these groups are advocating the

use of judicial impact statements.

Court Funding

Renewed interest in judicial impact statements has coincided with a growing disparity between rising caseloads and judicial budgets in both state

and federal courts.146 According to a 1992 American Bar Association

(ABA) report on court funding, twenty-five states experienced budget cuts

to some element of the justice system during the period from January 1,

1990, to February 1, 1992.147 As a result of these budgetary pressures,

some states have experienced increased delays in hearing cases, laid off

court personnel, imposed unpaid furloughs on court employees, and even

ceased civil trial sessions in order to permit disposition of criminal cases.148

Federal courts are experiencing similar problems. For instance, in 1993

it was necessary for the Judicial Conference to ask Congress for an additional $78 million because the federal courts had run out of funds to pay

court-appointed attorneys and jurors’ fees.149 The judiciary linked this

shortfall to Congress’s decision to authorize $370 million less than the judiciary had requested for fiscal year 93.150 In addition, the federal judiciary

recently announced that it will begin charging federal agencies for the use

of its computer-based Public Access to Court Electronic Records (PACER)

program.151

In advocating the use of judicial impact statements, certain groups may

be trying to guarantee ample judicial resources by shifting the focus of the

budget process away from judicial budget requests and toward proposed

legislation that would affect court workload. In the April 1993 issue of

Trial magazine, the president of the ABA makes this point expressly when

he claims that the preparation of justice impact statements will “ensur[e]

adequate [judicial] funding.”152

The Role of Judges

Court funding problems, coupled with increasing case dockets, have also

affected the role of judges. Many agree with Heydebrand and Seron that

there has been a “shift in the disposition of cases from adjudication to

administration”153 and a shift from “the dispute-resolution dimension of

judicial activity to the administrative . . . functions of courts.”154 As a

result, “the resources and labor-power of courts are disproportionately devoted to administrative rather than adjudicatory services,”155 and judges
Effects of Legislation on the Workload of the Courts

54

are increasingly required to function as case managers rather than adjudicators.

Judges may expect that judicial impact statements will aid in forestalling further increases in case dockets and, thereby, help preserve their

roles as adjudicators. Judges may also expect that judicial impact statements will result in limits on the number and types of cases that require

administration rather than adjudication. Evidence in support of this thesis

is provided by a recent statement by the chief judge of the Michigan Court

of Appeals urging continuation of Michigan’s judicial impact statements

program as a means of reducing the workload of Michigan’s judges.156

Judicial Jurisdiction

Judges may also be concerned about protecting their jurisdiction. State

judges have serious concerns about the increasing preemption of state law

and regulation of state judges by federal legislation. In addition, state

judges have an interest in curbing federal jurisdiction over particular

claims and limiting federal judicial review of state court decisions. These

judges may believe that judicial impact statements will force members of

Congress to admit that states’ rights are being contracted. Or, state judges

could believe that greater awareness of the financial impact of legislation

will forestall federal preemption and encroachment. Some proposals for

judicial impact statements, such as the checklist proposed by the Federal

Courts Study Committee, have specifically recommended that Congress

consider these issues before passing legislation. Similarly, the ABA has

claimed that judicial impact statements are needed because “Congress is

currently contemplating new criminal statutes which would extend federal

jurisdiction into what was heretofore the states’ domain.”157

Concerns About Statutory Interpretation

Another controversy that is currently engaging the judiciary concerns the

appropriate method of statutory interpretation. Judicial impact statements

may be convenient tools for both liberal and conservative judges embroiled

in the debate. The New York State Bar Association argues that judicial

impact statements will end the “after-the-fact search for what Congress

meant when it passed a law.”158

Behind this simple call for more precise legislation may be more complicated motives. In his book Who Will Tell the People? The Betrayal of

American Democracy, William Greider discusses the role of the federal

judiciary in interpreting statutes.159 He notes that conservative judges “are
Judicial Impact Statements: Unpacking the Discourse

55

generally hostile to federal regulation” and “are advancing behind the

general principle that political decisions should be made by accountable

political officers of government.”160 Judicial impact statements may be

seen as a mechanism for forcing Congress to accept responsibility for some

of the tough political decisions that conservative judges feel are being inappropriately thrust on the courts.

Poor Communication Between Courts and Legislators

Another reason for the advocacy of judicial impact statements may be an

increasing frustration on the part of judges with the quality and quantity

of communication between the judiciary and the legislature. Former

Circuit Judge Abner Mikva has written that “the problem with drafting

statutes and with statutory construction ‘as often as not is the unawareness

that the legislative branch and the judicial branch have of each other’s

game rules.’”161 Similarly, Justice Shirley Abrahamson of the Wisconsin

Supreme Court has concluded that “the judiciary and the legislature rarely

move together with a sense of common purpose.”162

Some judges clearly believe that these communication problems are

influencing their work. As Justice Ruth Bader Ginsburg wrote when she

was a circuit judge, “statutes sorely in need of more definite statement are

susceptible of diverse interpretation [and] . . . inspire litigation”163 and can

generate inconsistency and disagreement among the lower courts. Some

judges may also be dissatisfied with the infrequency with which their

decisions are read by legislators and the failure of legislators to correct

statutes based on judicial decisions. Thus, these judges may perceive judicial impact statements as a way to require greater legislative attention to

both the financial and policy concerns of the judiciary.

A Second Look at the Goals of Impact Statements

We have suggested that underlying the proposals for judicial impact statements may be a number of concerns that are not always fully expressed:

pressures on judges to adopt new roles, declining effectiveness of the

courts, loss of legitimacy and public respect for the courts, and the inevitable pressure to do something to improve routine court management

by addressing perennial concerns about costs and workload.

We will conclude with some observations about the appropriateness of

judicial impact statements as a means of achieving each of these underlying

goals and observations about the impact of judicial impact statements on

interests not represented by court insiders.
Effects of Legislation on the Workload of the Courts

56

1. Reducing Caseloads #1: Preserving Traditional Judicial Roles. We

have suggested that rising caseloads by themselves are not the real problem

motivating reformers, but have suggested instead that reforms have been

motivated by changes that rising caseloads have caused in the role of

judges and the internal organization of the courts. Judicial impact statements may, in fact, reduce court caseloads, not only by causing Congress

to reconsider particular pieces of legislation, but also by increasing the cost

of passing every piece of legislation, and thus reducing the number of laws

passed regardless of their merit.

But reducing court caseloads may not be directly responsive to the

problems experienced by judges and administrators, and it raises other

questions—addressed in the last part of this paper—about which cases will

be excluded from the courts.

Our point is, if the underlying impulse for reform is the pressure on

traditional judicial roles created by rising caseloads, that problem can be

addressed more effectively by other more appropriate means—for example, through training or by altering procedures in ways that increase

efficiency while preserving valued attributes of adjudication.

2. Reducing Caseloads #2: Limiting Federal Adjudication to Really

Important Rights. Judicial impact statements have an effect bill by bill, not

court by court. Thus, judicial impact statements do not really shift the focus of Congress to the general needs of the courts, but rather have a direct

impact on deliberation of the merits of each proposal to create new rights.

Whatever the value of consultation between the legislature and the judiciary about generalized standards for legislation, many judges have expressed discomfort at the thought of having the interests of the judiciary

intrude into the consideration of the merits of particular pieces of legislation.

3. Eliminating Cases in Which the Courts Are Ineffectual. To the extent

that judicial impact statement proposals are in part a response to the rationality crisis, they are intended to keep courts from being drawn into

conflicts that the judiciary deems inappropriate for adjudication.

Presumably, the great cost of complex litigation is one of the concerns

leading to judicial impact statement proposals. Yet, if the problem is simply the cost of adjudication, the appropriate remedy is increased appropriations for the courts, not a bill-by-bill review of the cost or benefit of legislation. Indeed, to the extent that Congress applies its own criteria in

weighing the value of a full-court adjudication as a means of determining
Judicial Impact Statements: Unpacking the Discourse

57

the scope of legal rights, the judiciary may be inviting politicization of the

very process it seeks to insulate.

To achieve the goal of effectiveness, the judiciary must be more specific

about the kinds of conflict resolution for which the federal courts are not

suited, rather than attempting to subsume this problem under the general

heading of costs and impact.

4. Deflecting Political Pressure. Finally, the overtones of the legitimation crisis detectable in judicial impact statement discourse suggest that

these proposals may be intended in part to deflect political pressure from

the courts by making Congress think twice about dumping difficult social

issues on the judiciary. Again, if this is part of the reason for proposing judicial impact statements, there is a large gap between what is being proposed and what is likely to be achieved unless the problem is described

more directly. Because Congress will not be directed to consider the symbolic costs of adjudicating politically sensitive issues by any of these proposals, such costs are not likely to be part of the express consideration of

the merits of legislation. Indeed, putting the problem this way raises concerns about the “problem” itself, since, as Frankfurter and Landis noted in

their classic study of the impact of the Judiciary Act of 1925, the purpose

of judicial reform is to make space for precisely those questions of great

political importance that the courts should resolve in order to fulfill their

role in defining the appropriate limits of government.164

Impact Revisited: Who Wins, Who Loses?

The recent increase in judicial impact statement advocacy by federal and

state judges, court administrators, and well-organized professional associations coincides with increasing public awareness about the rise of special

interest control over our country’s democratic processes and a feeling of

individual isolation from both the legislative and administrative processes

of federal and state governments.165 As lobbyists and other insiders stall

actions by legislatures and regulatory agencies, and frame the content of

laws and regulations, citizens are becoming anesthetized to abuses of public trust by government officials.166 In a democracy, lack of citizen

awareness and participation negatively affect not only the amount of attention given by government to citizens’ concerns, but also the quality of government output.

It is our belief that judicial impact statements are being promoted by

insiders and special interests. There is no grassroots demand for such
Effects of Legislation on the Workload of the Courts

58

statements—federal and state judges, court administrators, and professional organizations are the main supporters. These groups, just like corporate and industry lobbyists, have tremendous influence over and access

to the legislative process.

Noticeably absent from any of the discussion about implementing judicial impact statements are the viewpoints of ordinary citizens or public interest organizations. This is significant because judicial impact statements

are likely to burden the creation and expansion of substantive rights.

Promoters of judicial impact statements might argue that most citizens are

not concerned with mundane procedural issues, such as judicial impact

statements. But, as Frankfurter and Landis recognized in their study of the

Judiciary Act of 1925,

the mechanism of law—what courts are to deal with which

causes and subject to what conditions—cannot be dissociated

from the ends that law subserves. So-called jurisdiction questions

treated in isolation from the purposes of the legal system to

which they relate become barren pedantry. After all, procedure

is instrumental; it is the means of effectuating policy.167

Since judicial impact statements are designed to influence the substance of

legislation, those citizens who are currently isolated from the legislative

process will become further removed. The result may be that statutory protections and rights for the politically disempowered will be less likely to be

enacted.

A more important concern, however, is that these viewpoints will also

be left out of the preparation and analysis of judicial impact statements. Of

course, because judicial impact statements focus mainly on the cost of legislation, they are inherently biased against the creation or expansion of

rights. As a result, citizen participation will have to be focused on analyzing judicial impact statements or preparing alternative ones.

If judicial impact statements are required, how will ordinary citizens

participate in their preparation and analysis? One possibility is that citizens can be represented by the interest groups that currently participate in

the legislative process, such as civil rights organizations and consumer

groups. However, judicial impact statements will significantly increase the

cost of participation by these groups and will add another entry barrier to

their intervention in the legislative process. This is troublesome because

existing entry barriers have already allowed organized economic interests

to predominate over public interest groups in legislative processes.
Judicial Impact Statements: Unpacking the Discourse

59

According to a study by a committee of the U.S. Senate, public interest

groups are so inadequately funded that they are forced to be absent from a

significant percentage of formal federal government proceedings and are

typically outnumbered ten to one by industry representatives.168 On some

important matters, the study concluded, industries invest 50 to 100 times

more resources than public interest advocates can afford.169 The burden of

preparing counter judicial impact statements or detailed analyses of

existing ones will further limit the ability of public interest groups to

represent their members effectively.

Apart from the participation of representatives of the public interest,

how will ordinary citizens be able to participate in analysis of judicial impact? Government has already become unresponsive to the concerns of

many citizens because participating directly in government decision making is too expensive for most Americans.

The barriers to citizen participation in decision making on most issues

are great but may be particularly acute in legislative decisions regarding

the judicial system because of the important yet diffuse nature of the social

benefit from civil justice. Take, for example, the issue of civil justice reform. The civil jury is currently under attack from a variety of interests, including some manufacturers, insurance companies, doctors, judges, and

lawyers. As these interests try to regulate downward the civil jury, who is

able to fight for the survival of the seventh amendment? Although some legal organizations and public interest groups are strong defenders of the

civil justice system, ordinary citizens are not able to participate in the debate. Consumer advocate Ralph Nader has pointed out that identifying the

“consumers” of the civil justice system is difficult and has called for a national association of citizens who have sat on civil juries to defend the civil

justice system. He describes the justice system as a “unique and decentralized muscle of our society.”170 If citizens are unable to organize around

more concrete issues, such as the seventh amendment, how will ordinary

citizens ever be able to organize themselves to prepare and analyze judicial

impact statements?

Finally, some of these problems could be mitigated if Congress provided

funding to citizen groups that wanted to prepare impact statements or to

help interested citizens band together. These alternatives, however, have

been rejected in other contexts and are unlikely to be adopted for judicial

impact statements.

171

Some of these problems may also be mitigated if judicial impact statements are prepared with sensitivity to a variety of concerns. Constituencies
Effects of Legislation on the Workload of the Courts

60

outside of the legal profession and judiciary should be involved in the

preparation of judicial impact statements. Second, a variety of perspectives

other than those of the courts should be utilized in the preparation of judicial impact statements. Third, judicial impact statements should not revolve solely around the financial costs of legislation. Instead, an approach

that analyzes the potential benefits of the substantive rights that would be

created or expanded by legislation, as well as the goals of proposed legislation, is necessary. The statements should also focus on the costs of doing

nothing. Each judicial impact statement should be required to include

specific information about the purpose the statement is trying to achieve

and explicit information about the functions of the courts that would be

enhanced and diminished by proposed legislation.
61

Judicial Preferences, Public Choice, and the

Rules of Procedure

by Jonathan R. Macey172

J. DuPratt White Professor of Law

Cornell University

This article is reprinted with permission from the Journal of Legal Studies, vol.

XXIII (January 1994) © 1994 by The University of Chicago. All rights reserved.

Introduction

An efficient procedural system will minimize the costs of erroneous judicial

decisions and the costs of operating that system.173 However, for the most

part, the rules of procedure are formulated by judges. If the self-interest of

those judges conflicts with the efficiency criterion, it would seem plausible

that the judges will formulate procedural rules that further their own

interests, rather than the interests of efficiency.174

The prediction that judicial behavior is likely to conform to judges’ rational self-interest, rather than to the interest of economic efficiency, appears to be particularly valid in the context of a discussion about procedural rules. Such rules are not only construed by judges, but they also are

promulgated under the direction of judges. The committee that initiates

revision of the Federal Rules of Civil Procedure is composed primarily of

judges.

The present membership of the Advisory Committee on Civil Rules includes three circuit judges, two district judges, one magistrate judge, one

state court Chief Justice, a representative of the U.S. Department of Justice,

four private lawyers, one law school dean, and one law professor.175 After

a period of public comment, approval by the Standing Committee, and

approval by the Judicial Conference of the United States, the rules of

procedure promulgated by this Advisory Committee on Civil Rules must

be approved by the Supreme Court. However, to date, the Supreme Court

has served as a mere conduit for the work of the advisory committee, approving every change the committee has recommended.

Judicial rule making is not completely independent of legislative control. While amendments are technically subject to congressional oversight,

Congress typically acquiesces in the promulgation of civil rules amendments. Because procedural rules are designed to facilitate judicial adminis-
Effects of Legislation on the Workload of the Courts

62

tration, judges are given considerable leeway to craft such rules to conform

to their preferences.

Regardless of the motivations of the judges involved in crafting the

rules of procedure, it seems beyond dispute that the lawyers involved in

this process will have little to gain from minimizing the costs of the procedural system. As Judge Winter has observed, “important segments of the

organized bar have little incentive to lessen the cost of litigation by reducing the need for unnecessary legal services. Those who seek to reform the

[procedural rules of] discovery are, therefore, unlikely ever to find their

proposals commanding enthusiastic support among the organized Bar.”176

It is surprising that the existing economic literature on the rules of procedure uniformly has ignored the possibility of self-interest and instead has

presumed that judges exercise their considerable discretion to formulate

procedural rules that promote the goals of economic efficiency. The lack of

attention to self-interest is particularly surprising in light of the fact that

studies of particular procedural rules from an economic perspective generally have not produced results consistent with economic efficiency.177

Starting with the assumption that judges seek to maximize self-interest,

this article represents a preliminary attempt to develop a framework that

will generate useful predictions about the likely contours of procedural

rules. The article then compares the predictions generated by its model of

self-interested judicial behavior with existing procedural rules. While the

self-interest model developed here is not sufficiently well specified to generate quantitative results that yield the possibility of rigorous empirical

refutation, the competing public-interest model is equally undeveloped.178

However, useful comparisons between the self-interest model and the

public-choice approach developed here still can be made by comparing

qualitative descriptions of the effects of existing rules with the predictions

generated by these rival approaches.

Having staked out a bold claim about the usefulness of the methodology developed in this article, qualifications are in order. First, over a wide

range of issues, the self-interest model and the public-interest model of

procedural rules will generate similar outcomes. It is only where the self-interest of judges conflicts with the public interest in efficient judicial administration that the differences between the two theories become important.

Moreover, as developed more fully below, in certain contexts, the two theories will converge because judges have an interest in efficient administration. However, because judges do not fully internalize the costs of their

own errors or the costs of an inefficient administration of justice, judges’
Judicial Preferences, Public Choice, and the Rules of Procedure

63

self-interest will conflict with efficiency values. It is where such conflict exists that a theory of procedure built on judicial self-interest has value.

Second, the theory of judicial self-interest discussed here does not

conflict with the theory that substantive common law rules tend to be

more efficient than statutes or administrative law rules. Indeed, as will be

seen, the same self-interest that shapes procedural rules to reflect judicial

preferences also causes judges to generate efficient common law rules. In

particular, judges can reduce their caseloads and eliminate duplicative efforts by crafting clear rules where they are able. This, of course, contributes to efficiency. Moreover, a judge can enhance his or her prestige

within the judiciary by fashioning creative, workable solutions to existing

legal problems. This, too, contributes to the efficiency of the legal system.

This article begins with a general description of the likely preference

functions of judges and considers how these preferences might influence

the content of procedural rules. These observations are then compared

with existing procedural rules. It seems that such rules are best explained

with reference to judicial self-interest.

The Nature of Judicial Self-Interest

Any viable theory of judicial self-interest must account for the structural

constraints on judicial behavior that restrict the ability of judges to serve

their self-interest. Such a theory of judicial behavior must reflect the immutable characteristics of the federal jurisdiction. For example, as a structural matter, federal judges: (1) have general jurisdiction over a wide variety of substantive areas of the law; (2) enjoy life tenure; and (3) are paid

salaries that may not be reduced in nominal terms.

In addition, judges inevitably will have made large, fixed, human capital

investments in the form of their knowledge of existing law. This human

capital investment produces two sets of legal skills, one set is specific and

the other generic. As used here, a judge’s specific skills consist of expertise

in specialized areas of the law, such as securities regulation, admiralty, or

criminal procedure.179 A judge’s generic legal skills consist of his or her

expertise in areas of the law that are equally applicable across a wide range

of cases. For example, the ability to conduct legal research is a generic legal skill, as is a detailed knowledge of the Rules of Evidence or the Rules

of Civil Procedure.

On the basis of these simple observations about the nature of the judicial function, it is possible to develop three hypotheses about judicial pref-
Effects of Legislation on the Workload of the Courts

64

erences. First, judges will try to maximize their ability to utilize their

generic legal skills. To the extent that procedural rules are generic rather

than specialized, ceteris paribus, judges will attempt to maximize the range

of cases that can be terminated through procedural devices.

Second, because judges have lifetime tenure, they are less susceptible to

the political pressures that affect the decisions of elected officials. This

makes judges more likely to further their own self-interest by pursuing

nonmonetary interests such as increasing leisure (reduction in workload),

discretionary power to select which cases to consider, increased influence,

and enhanced reputation within the legal community. This observation is

consistent with Richard Posner’s view that “judges, like other people, seek

to maximize a utility function that includes both monetary and nonmonetary elements (the latter including leisure, prestige and power).”180 As

applied to the Rules of Civil Procedure, we would expect judges to opt for

those procedural rules that maximize their ability to make discretionary

decisions, and those rules that enable judges to make such decisions

quickly and with a minimum of outside interference. This flexibility not

only allows judges to maximize leisure, but also to reach legal results that

maximize their own view of the good.

Finally, judges’ considerable human capital investment in the legal system is likely to align their preferences with the preferences (and interests)

of the legal community as a whole. Consequently, judges are likely to view

procedural rules that maximize the demand for lawyers’ services as socially

desirable, not because of any cynical desire to pad the pockets of members

of the bar, but because of a tendency to see the benefits of procedural rules

and not the costs. This tendency is a result of the fact that judges, like

lawyers, internalize the benefits of procedural rules but externalize the

costs on clients and on society generally. This article will now consider

each of these sources of judicial preferences with respect to procedural

rules.

Procedural Rules and Judicial Specialization

As noted above, a complete theory of how judicial preferences influence

procedural rules must account for the structural features of the judiciary.

In particular, federal judges are, by and large, judges of general jurisdiction. As such, a federal judge must decide cases involving a complex mix of

state and federal laws, ranging from admiralty to bankruptcy to securities

regulation.181
Judicial Preferences, Public Choice, and the Rules of Procedure

65

The task of judging has been made more difficult over time because of

the rapid expansion in the number and complexity of federal statutes.182

The explosion in statute making has made it impossible for federal judges

to master the substantive rules of law in all of the fields of law in which

they must generate legal opinions. Procedural rules can serve the self-interest of judges by permitting them to use procedural grounds as a basis for

deciding cases, thereby avoiding the necessity of acquiring detailed specialized knowledge of substantive areas of law.

The theory developed here has an empirical component because one

would predict that an individual judge will be more likely to dispose of a

case on procedural or technical grounds where he or she lacks particularly

strong views or unique expertise in the substantive area of law at issue. A

judge who has invested considerable human capital in learning the substantive law of securities regulation is less likely to dispose of a case involving securities law issues on technical, procedural grounds. Similarly, a

judge with no expertise in admiralty will be more likely to dispose of cases

involving admiralty issues on procedural grounds than those who have

such expertise.

Thus, from the judges’ perspective, procedural rules permit judges to

dispose of unwanted cases, yet still allow them to utilize their substantive

knowledge in those areas in which they have particular expertise or interest. This analysis is consistent with Professor Schauer’s observation that

the plain meaning rule is most often invoked when judges are called on to

decide cases involving what many perceive as uninteresting, highly technical areas of the law, such as those involving the Employee Retirement

Income Security Act, Social Security, and taxation. Substantive legal reasoning, however, is invoked by judges to decide more interesting cases involving such issues as flag burning, affirmative action, separation of powers, or patronage.183

Seen in this way, the rules of procedure serve as a substitute for other

generic legal rules, such as the canons of statutory construction or the rule

of stare decisis. All of these rules can be viewed as vehicles by which judges

can decide cases using generic legal rules that do not require knowledge of

the substantive legal issues involved in the underlying dispute.

Dismissal

The most obvious way for a trial judge to invoke the rules of procedure to

dispose of a case that he or she does not wish to decide on the merits is by

simply dismissing the case, either for failure to state a cause of action, or
Effects of Legislation on the Workload of the Courts

66

for some other technical failure of pleading. For a variety of reasons, this is

unlikely to be an effective strategy for trial judges seeking to maximize

narrow self-interest. First, the fact that one judge finds the legal issues in a

particular case uninteresting does not mean that other judges—including

appellate judges—will find them uninteresting. The rulings of federal trial

judges are subject to review by appellate panels of three judges. The availability of three-judge panels of review makes it three times as likely that

one of the appeals judges reviewing the case will find the substantive issue

involved to be interesting.

This means that the probability of reversal for simple dismissals is likely

to be considered intolerably high for a trial judge. Judges will care about

reversal in this context for two reasons. First, judges have an interest in

avoiding being reversed because of the adverse reputational effect of a reversal.184 In addition, when a case is reversed on appeal it generally is

returned to the trial judge who originally ordered the dismissal.

Consequently, dismissal on the pleadings, if reversed, will not permit the

trial judge to avoid hearing the case.

An additional reason why procedural rules are not likely to be used to

discharge cases on the pleadings is that lawyers involved in drafting procedural rules have a strong monetary interest in avoiding early dismissal. For

this reason, even “trivial or incremental” alterations in the procedural

rules that reduce the demand for lawyers’ services are likely to “encounter

enormous resistance.”185

Moreover, as developed more fully below, judges’ enormous human

capital investment in the legal system leads them to see enormous intrinsic

value in the legal process itself. Independent of the probability of reversal,

a judge who summarily dismisses too many cases is likely to be viewed as a

poor judge. This is a result that judges wish to avoid.

Settlement

Most importantly, dismissing cases on the pleadings is likely to be a rare

occurrence because trial judges have a superior, low-cost alternative to

such dismissals: inducing settlements. Inducing settlements is superior to

dismissing cases from the judiciary’s perspective because it drastically reduces the probability of reversal. Inducing settlements is also superior to

dismissing cases from the perspective of the legal community. As Geoffrey

Miller has observed, because attorneys will have superior information

about the prospects for a case’s success of than will the clients, the power

over the settlement decision generally will be shared by the lawyer and the
Judicial Preferences, Public Choice, and the Rules of Procedure

67

client. Lawyers can be expected to shade their legal advice regarding settlement to suit their own interests.186 Knowing this, judges can bring about

the cooperation of the legal community in their efforts to obtain settlements by conducting settlement negotiations in such a way that it is in

the economic interests of lawyers to encourage their clients to settle.

Interestingly, while judges who dismiss cases on the pleadings risk tarnishing their reputations, judges actually can enhance their reputations by

devising “innovative” or “creative” settlements. For example, Rule 16 of

the Federal Rules of Civil Procedure permits a trial judge to direct the attorneys for the parties to appear at a pretrial conference for the purpose of

“facilitating the settlement of the case.”187 But judges can invoke Rule 16

simply to rid a case of what they regard as frivolous or uninteresting issues

of fact and law, whether or not requested by one of the parties. Moreover,

the Judicial Conference Committee on Rules of Practice and Procedure

would have amended Rule 16 to authorize courts to require not only

lawyers, but also the parties or their insurers both to attend settlement

conferences and to participate in alternative dispute resolution procedures

designed to foster settlement. Lawyers objected to this proposal, claiming

that “explicit authority to require party attendance at settlement

conferences would be misused by judges to coerce settlements.”188

Consistent with Miller’s analysis of the agency problems involved in

settlement, it is notable that the lawyers do not object to judges facilitating

settlements when the clients are not around. They only object when the

clients can be there to observe the discussions of the division of gains from

settlement. Put another way, if there were no agency costs in the attorney–

client relationship, there would be no reason for lawyers to object to settlement discussions at which the clients would appear. As a compromise

between the judicial interests in facilitating settlements and the bar’s interests in controlling settlement negotiations, it was agreed that party representatives would be made accessible by telephone during settlement negotiations with the court. Moreover, the amendments to Rule 16 do not deter

judges from exercising their inherent powers to compel parties to attend

pretrial conferences or to participate in alternative dispute resolution procedures.

Rule 68, Discovery, and Automatic Disclosure

As noted above, judges are likely to use the rules of procedure to increase

their control over litigation. Judges control litigation by retaining the

power to dispose of unwanted cases by inducing settlements, and by ex-
Effects of Legislation on the Workload of the Courts

68

panding their ability to dismiss cases without reference to the underlying

substantive legal issues. In addition, building on the assumption that

judges care about prestige and prefer important cases to trivial cases, we

can expect procedural rules designed to raise the fixed costs of litigation in

order to weed out small cases.

Under Rule 68, for example, a plaintiff who refuses a settlement offer,

goes to trial, and obtains a judgment that is less favorable than the defending party’s offer, must pay all of the defendant’s post-offer costs. Such a

rule is best viewed as a mechanism for reducing the incidence of smallstakes litigation, rather than as a mechanism for encouraging settlement.

As Miller has observed, the popular justification for Rule 68, namely that

the rule encourages settlements, is fallacious because it ignores the fact that

defendants faced with Rule 68 simply will lower their settlement offers to

plaintiffs.189 Instead of encouraging settlement, such an outcome simply

drives down the level of settlement offers.

The costs that courts may assess against plaintiffs choosing not to accept an offer of settlement under Rule 68 generally do not include variable

costs such as attorneys’ fees, but only fixed costs such as filing fees and the

cost of deposition transcripts.190 Consequently, although the effect of Rule

68 is to lower the expected value of cases to plaintiffs by raising expected

costs, the costs involved are fixed, and thus they have a proportionately

greater impact on small-stakes litigation. As a result, Rule 68 affects

plaintiffs’ incentives to bring cases in a way that discourages small cases

more than large ones. Thus, Rule 68 not only shifts wealth from plaintiffs

to defendants, but also shifts wealth from lawyers to judges. Cases that

might be brought in the absence of Rule 68 will not be brought with the

rule in place.

Recent analysis of Rule 68 reinforces the argument that the peculiar

design of this rule can best be explained as a mechanism for maximizing

judicial utility, rather than for maximizing the efficiency of the legal system. In a recent paper, Kathryn Spier provides a theoretical framework

that indicates that Rule 68 will tend to increase the likelihood of settlement

where the litigants disagree about damages but agree about liability and

will tend to decrease the likelihood of settlement where litigants disagree

about liability but agree about damages. This corresponds to the basic intuition that lawyers and judges will find liability (i.e., legal) issues more interesting than damages issues, which generally revolve around such nonlegal issues as the plaintiff’s expected future earnings.191
Judicial Preferences, Public Choice, and the Rules of Procedure

69

The above arguments about Rule 68 apply with even greater force to

the liberal rules for discovery. Under modern discovery rules, litigants can

select whatever discovery tools they wish—interrogatories, depositions,

document requests—and can conduct free-form investigations of their opponents’ records without regard for the particularities of the pleadings or

the precise nature of their positions.192 The liberal rules of pretrial discovery involve “considerable to enormous waste.”193 In particular:

[A] no-stone-left-unturned (sometimes a no-grain-of-sand-leftunturned) philosophy of discovery governs much litigation and

imposes costs, usually without corresponding benefits. Costly

discovery undertaken with only a marginal effect on the outcome

of litigation constitutes an economic loss to society. Like any

wasteful practice, it uses up resources that could be put to more

productive uses.194

Perhaps the most common explanation for the survival of the patently

inefficient rules of discovery is that they benefit lawyers at the expense of

clients. Litigants become the victims of their lawyers’ self-interest. The argument is that lawyers profit from more discovery because they are paid by

the hour, and thus benefit both from more discovery and more litigation

about discovery.195 While this analysis has some explanatory power, it is

not a complete explanation of the existence of liberal discovery because it

ignores the fact that there are costs as well as benefits to lawyers from such

rules. In particular, from the lawyers’ perspective, liberal discovery rules

increase the fees garnered in individual cases, but they decrease the overall

demand for legal services by driving up the price of such services. Thus,

plaintiffs’ lawyers will be less able to convince prospective clients to file

lawsuits because such clients will be aware of the enormous cost of discovery.

Even those who explain liberal discovery rules on the basis of the divergence of interest between lawyers and clients acknowledge that:

[D]iscovery is sometimes used as a club against the other party.

Unlimited discovery allows a party to impose costs upon an adversary solely to increase the adversary’s expenses. The anticipation that bringing or defending a lawsuit will be costly, regardless of the merits, may cause a party with a meritorious claim or

defense either not to sue, to give up early, or to settle for an

amount less than defense costs.196
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70

Similarly, one would predict that market forces would emerge to mitigate

the agency cost problems that exist between lawyers and their clients. And

they have. In recent years, corporate inside counsel has become more active in monitoring outside legal services. An entire cottage industry of consulting firms that specialize in auditing legal bills has emerged as well.197

These developments can be expected to reduce lawyers’ demands for openended discovery, and one would predict that these developments would

lead lawyers to respond by voluntarily reducing the costliness of discovery.

Thus, it is hard to conclude that a rule that causes parties not to sue

unambiguously benefits lawyers. On the other hand, it is clear that such

rules benefit judges in two ways. First, the liberal rules of discovery reduce

total litigation, thereby reducing judges’ overall caseloads. Second, liberal

discovery rules constitute fixed costs for bringing litigation because there is

no legal rule that reduces strategic behavior by lawyers by limiting the extent of the discovery available in small-stakes litigation.198 Consequently,

the liberal rules of discovery will have a disproportionate impact on smallstakes litigation because discovery will constitute a higher percentage of

the total expected recovery in such litigation.

Of course, the parties requesting discovery bear some of the costs associated with their discovery requests. We would, therefore, expect less discovery in small-stakes litigation because clients will only be willing to incur

litigation costs up to the amount of any expected recovery. Cases with

small expected recoveries will not justify elaborate discovery requests.

Consistent with this analysis, a study by the Federal Judicial Center

showed that discovery requests were recorded with the district court in

fewer than one-half of 3,114 cases studied.199 Moreover, this study revealed a positive correlation between the amount in controversy and the

number of discovery requests.200 Nonetheless, abuse of the discovery

process is well documented, and it can be used to coerce settlements and to

reduce the incidence of litigation, particularly small-stakes litigation.201

However, given the rather limited use of settlement in small-stakes litigation, self-interested judges might try to develop another mechanism for reducing the percentage of their caseloads composed of such litigation.

The Advisory Committee on the Federal Rules of Civil Procedure recommended in 1992 that courts be permitted to limit discovery where:

the burden or expense of the proposed discovery rule outweighs

its likely benefit, taking into account the needs of the case, the

amount in controversy, the parties’ resources, and the importance of the proposed discovery in resolving issues.202
Judicial Preferences, Public Choice, and the Rules of Procedure

71

Rule 26 of the Federal Rules of Civil Procedure was amended to reflect this

recommendation in 1993. This new rule can be expected to benefit both

lawyers and judges. Judges benefit because they gain new power to control

discovery. Judges will be able to permit broad discovery when they want to

raise litigation costs and encourage early settlement. Lawyers can increase

the supply of litigation by making a credible claim to clients that litigation

costs can be reduced by limiting discovery.

More important, an additional amendment to Rule 26 requires automatic disclosure of certain core information in every case. This core information includes the names and addresses of witnesses, and the location

and categories of documents “relevant to disputed facts alleged with particularity in the pleadings.”203 Critics of this amendment within the legal

community argue that it will produce more confusion, delay, and expense

than prior discovery rules because attorneys will be free to manipulate the

standard without fear of penalty.204 The legal community also has argued

that the amendment will assist plaintiffs by requiring defense counsel to

respond to every legal theory that might support the plaintiffs’ complaints,

including theories the plaintiffs had not considered.205

The amendments to Rule 26 will likely reduce judicial workloads by reducing the incentives of lawyers to bring small-stakes litigation in two

ways. First, small-stakes cases will be deterred because these amendments

impose yet another fixed cost on the litigation process. Second, and more

important, the amendments require document production in every case, including the 50% of cases in which there was no document production at

all prior to the implementation of the amendments. As such, the amendments to Rule 26 will have a disproportionate effect on small-stakes litigation by requiring the production of documents that would not have been

produced in the absence of these amendments.206 Ironically, a set of rule

changes ostensibly designed to streamline the discovery process will result

in even more document production than before. It is not surprising that

many practitioners believe that these discovery reforms reflect an outcome

in which lawyers’ interests are being “sacrificed to the judicial agenda [of

reducing the workload of the courts] without any airing of the issues.”207

Chevron

Perhaps the most striking example of the judiciary’s efforts to claim control of their own agendas is reflected in Chevron U.S.A. Inc. v. Natural

Resources Defense Council, Inc.208 Chevron involved the Environmental

Protection Agency’s (EPA) “bubble” policy, which contained a new way to
Effects of Legislation on the Workload of the Courts

72

measure discharges of industrial pollution controlled by the Clean Air Act.

The EPA’s new policy gave the administration the authority to define the

statutory term “stationary source” to mean either any polluting device

within a plant, or an entire manufacturing plant. In some states, this interpretation had the effect of reducing manufacturers’ costs of complying

with the Clean Air Act.

At issue in Chevron was whether the EPA’s new definition of the term

stationary source violated the Clean Air Act. But the opinion contained

sweeping language on the need for courts to defer to administrative agency

interpretations of ambiguous statutes, including statutes on subjects far

removed from the Clean Air Act. In what has been described as one of the

“defining cases in the last twenty years of American public law,”209 the

court held that an administrative agency’s construction of a statute would

be upheld unless it is unreasonable or otherwise impermissible.210 This

case has been severely criticized as “a striking abdication of judicial responsibility” and “quite incompatible with Marshall’s aphorism that “[i]t

is emphatically the province and duty of the judicial department to say

what the law is.”211 The criticism of Chevron is based on the fact that the

decision creates enormous possibilities for judicial abdication of agency

decisions.

From the perspective of the self-interest of the judiciary, however,

Chevron must be viewed as an act of genius. The opinion increases dramatically the ability of judges to control their own agendas. As the court in

Chevron made clear, courts may draw upon “traditional tools of

[statutory] construction” when evaluating agency interpretations of

statutes. In this respect, judges may defer to agencies when they want to.

Alternatively, whenever a judge thinks that an agency’s interpretation of a

statute contradicts the plain meaning of the law, the overall structure of a

statutory scheme, the relevant legislative history, or even the underlying

purposes of a statute, he or she is free to ignore Chevron’s call for deference and overrule the agency.212

The decision in Chevron allows federal judges to invoke a generic procedural value—deference to the expertise of administrative agencies—

whenever they wish to avoid considering the merits of an agency ruling.

On the other hand, the ruling in Chevron is sufficiently flexible that judges

who have developed a specialty in a particular area, or have strong preferences about the outcome of a particular case, are completely free to ignore

the agency’s interpretation.213 Thus the court’s ruling in Chevron allows

judges simultaneously to take full advantage of any specific human capital
Judicial Preferences, Public Choice, and the Rules of Procedure

73

investments they have made in learning particular areas of the law and to

decide other cases on the basis of generic legal skills. No judge will have

the expertise or the inclination to handle all possible areas of substantive

law.

Similarly, Chevron also serves the interests of judges who want to minimize the time and effort involved in judging. On the one hand, after

Chevron one would expect that those judges with particularly strong tastes

for leisure would invoke the Chevron invitation simply to defer to agency

expertise. On the other hand, those judges with more ambition or conviction, or with a stronger agenda, are free to ignore the determinations of

administrative agencies when they so choose.

Procedural Rules, Judicial Preferences, and the Public Interest

Although the theory developed in this article is based on judicial self-interest, the theory is descriptive rather than normative. Nothing in the theory

would suggest that judges acting in their own self-interest will craft rules

that are systematically inefficient.

By contrast, over a wide range of issues, the judiciary’s influence on the

development of procedural rules will move such rules in the direction of

clients’ and society’s interest by offsetting the influence that lawyers have

on the development of the law. For example, as noted above, judges’ ability to streamline the discovery process will mitigate the agency-cost problem that exists between lawyers and their clients. Similarly, judges’ power

to force settlements on lawyers will benefit some clients by reducing the

ability of lawyers to prolong litigation in order to amass more billable

hours.

And the use of procedural rules to discharge cases on the basis of

generic legal skills may be efficient because it reduces the cost to judges of

specializing in certain areas of law. Because judges can dispose of a wide

range of cases on the basis of generic legal skills, the opportunity cost of

specializing in one area of the law is reduced. Thus, even judges of general

jurisdiction can retain their specialties in particular areas of the law by disposing of cases in areas they know nothing about by inducing settlements

or by invoking a decision rule, such as one of the canons of statutory construction, the rule of stare decisis, or some other procedural device that involves the application of a generic legal skill.

It would be wrong, however, to view the impact of judicial self-interest

on procedural rules as providing only benefits and no costs. The preceding
Effects of Legislation on the Workload of the Courts

74

analysis suggests that judicial self-interest causes some inefficiencies in the

litigation process. For example, it appears likely that judges’ tastes for

leisure cause them to raise the costs of litigation above the socially optimal

level. Rule 68 of the Federal Rules of Civil Procedure, along with the high

fixed costs of discovery rules, move the threshold point at which the expected benefits of bringing a lawsuit are outweighed by the costs, particularly for small-stakes claims, to inefficient levels.

Similarly, litigation produces a public good in the form of legal precedent. Legal precedents are of general social value because they lower the

transaction costs of doing business. Where judges’ self-interest leads them

to craft procedural rules that reduce the percentage of cases ultimately resolved on the merits, more cases are resolved on technical, procedural

grounds, and the available supply of precedents is adversely affected.

Finally, to the extent that the procedural rules allow judges to obtain

settlements in cases that would not otherwise be settled and to terminate

cases on purely procedural grounds, or by merely looking at the files and

then issuing an unpublished memorandum opinion, the risk that judges

will decide cases willfully (i.e., on the basis of their own narrow preferences without regard to efficiency norms, or precedent, or other neutral

principles), goes up. This is because when a judge is able to induce a settlement or to terminate a case on purely procedural grounds, he or she

avoids having to justify the decision on the basis of a formal, written opinion.

The nature of judicial preferences also can help explain why judges

have not gone further in pressing for changes that would reduce caseload

growth. One suggestion for dealing with the explosion in judges’ caseloads

is the proposal to establish a new federal appellate court that would serve

as a buffer between the circuit courts of appeal and the Supreme Court. As

Richard Posner has pointed out, the creation of an additional tier of intermediate appellate courts, by making the judicial system more hierarchical,

could provide an effective response to caseload growth.214 In fact, it was

the problem of caseload growth that led most states, as well as the federal

authorities, to create an intermediate appellate court between the trial

court and the Supreme Court.215 However, the creation of such a court

would benefit the Supreme Court at the expense of the federal appellate

courts by reducing the caseload of the Supreme Court and the prestige of

the lower federal courts of appeal. For this reason, the proposal to create a

new appellate court just below the Supreme Court has been vigorously opposed by appellate court judges.
Judicial Preferences, Public Choice, and the Rules of Procedure

75

Similarly, it is interesting that Congress has responded to the federal

courts’ caseload problem not by imposing higher filing fees, but instead by

setting minimum threshold levels for bringing lawsuits. The efficient solution to the caseload problem would be to impose filing fees.216 A minimum

amount in controversy requirement is equivalent to setting an infinite fee

for cases below the minimum and a zero fee for cases above the level.

However, no one actually collects such a fee. By contrast, a fixed fee imposes what is, in effect, a proportionally declining tax on lawsuits, thereby

causing litigants to internalize the costs of using the court system.217

The minimum amount in controversy requirement used in the federal

court system is inefficient compared with a filing fee system, because the

requirement subsidizes litigation. If a case meets the minimum requirements, the litigants do not have to contribute to the costs of the judicial

system.218 However, judges are likely to prefer a minimum amount in

controversy requirement because such requirements unconditionally prohibit small-stakes litigation and ensure that the small claims disfavored by

judges will not be brought.

Turning Substantive Rules into Procedural Rules: Lessons

from Corporate Law

Judges will tend to decide cases in ways that allow them to take advantage

of their own skills and expertise. For example, while judges generally have

little, if any, expertise in statistics or economics or finance, they have

significant expertise in establishing procedural norms. Consequently, while

a judge is unlikely to be able to evaluate the substantive terms of a particular transaction, or to determine whether a particular price is fair, the judge

will be able to evaluate whether a preexisting set of procedural rules has

been followed by litigants. Judges who wish to expedite the disposition of

cases will replace substantive law analysis with procedural rules.219 Judges

will not only invoke procedural rules to dismiss cases, but they also will

transform substantive rules of law into procedural rules. Thus, judges are

likely to establish substantive legal rules that are, in effect, procedural.

For example, in Smith v. Van Gorkom220 the shareholders of Trans

Union Corporation filed a class action lawsuit against the firm’s board of

directors, seeking to set aside a merger between Trans Union and a wholly

owned subsidiary of Marmon Group, Incorporated. This merger caused

the plaintiffs to realize a return of more than 50% on the premerger price

of their stock. The Delaware Supreme Court decided that the Trans Union
Effects of Legislation on the Workload of the Courts

76

directors had acted in a grossly negligent manner in approving the merger

proposal because they had not developed an adequate procedural framework for analyzing the proposal.

What is remarkable about the opinion is that despite the imposition of

draconian damages on the individual directors who were defendants, the

remedy prescribed was “purely a nostrum,”221 because “corporate managers faced with a situation like that confronting the Trans Union board

can insure against liability by creating a paper record demonstrating that

the board has engaged in due deliberations.”222 In other words, corporate

directors can engage in virtually any transaction they wish, without fear of

challenge, simply by creating the procedural appearance of fairness.

Lawyers create the appearance of fairness by ensuring that the corporate

minutes reflect lengthy and thorough discussions of the proposed transactions and by providing the decision makers with all relevant documents.

Of course, these procedures, while costly, “do not provide any reliable

guarantee that the transaction will benefit shareholders.”223 What these

transactions do accomplish is to allow judges to focus their decision making on issues with which they are comfortable.

Commentators have observed that these sorts of rules amount to a tax

on corporate control transaction. This tax benefits both lawyers and

judges. It benefits lawyers by increasing the demand for their services, and

it benefits judges by allowing them to substitute a generalized judicial inquiry into the procedures used in a particular transaction for the difficult

and fact-intensive analysis that otherwise would be required.

Perhaps the best example of the judiciary’s efforts to substitute procedural rules for substantive rules of law lies in the corporate law rules regarding valuation issues. Despite the fact that sophisticated techniques of

corporate finance have made valuation much more objective than ever before, courts have consistently emphasized that procedural rules are more

important than substantive legal rules. For example, in Weinberger v.

UOP, Inc.,

224 the Delaware Supreme Court decided that the procedures

followed by a board of directors in evaluating the price paid by a majority

shareholder for a corporation under its control was insufficient, even when

the shares of the corporation being purchased were publicly traded and the

price paid represented a 50% premium over the market price of the subsidiary’s shares. Weinberger involved the purchase by Signal Corporation

of shares in UOP, whose stock was traded on the New York Stock

Exchange. Signal, which owned 50.5% of UOP’s stock, wanted to increase

its ownership to 100%. In evaluating the fairness of the transaction, the
Judicial Preferences, Public Choice, and the Rules of Procedure

77

court made it clear that the preoffer market price of UOP was of less importance than the procedures established by Signal for arriving at the

price.225 The rule established in Weinberger has resulted in a new set of

procedures in cash-out merger transactions that increase the cost of consummating such transactions without any apparent benefit to the minority

shareholders. The result in Weinberger can best be explained as an effort

to transform substantive legal issues that judges find difficult to master into

procedural rules that are easy for judges to administer.

Indeed, under existing corporate law, virtually any transaction can be

insulated from legal challenge if a sufficient procedural framework is established and followed. It is impossible to justify the systematic

“proceduralization” of substantive corporate law rules without taking account of the judges’ preference for procedural over substantive rules.

Conclusion

The preceding analysis demonstrates that judges have considerable ability

to control their own agendas by crafting decision rules that allow judges to

dispose of cases quickly and cheaply. These rules also enable judges to

winnow out undesirable, small-stakes litigation, to devote more energy to

cases in which they are interested, and to spend less time on cases that are

of little entertainment value.

Of course, judges have not captured the rule-making process completely. Lawyers and other interest groups, such as court reporters, insurance companies, and other large consumers of judicial services, inevitably

influence the process. But as the above discussion has shown, the ability of

members of the federal judiciary to control the process by which the

Federal Rules of Civil Procedure are revised gives them a distinct advantage over competing interest groups in obtaining procedural rules that

reflect their own self-interest.

79

Overcoming the Competence/Credibility

Paradox in Judicial Impact Assessment:

The Need for an Independent Office

of Interbranch Relations

by Charles Gardner Geyh226

Associate Professor of Law

Widener University

Introduction: The Competence/Credibility Paradox and the

Politics of Interbranch Relationships

Our governmental structure envisions legislative problem solving as a

joint, if not cooperative, venture between the President and Congress.

Except in the rare instance of the veto override, the two must come to

terms and agree, if legislation is to be enacted. In contrast, the Constitution

assigns no formal role to the judiciary in the development of legislation,

relegating to it the task of interpreting laws after passage. If Congress and

the President are analogized to a designer and installer of a guardrail at the

top of a cliff, the judiciary is an ambulance driver positioned at the base.

Given this limited, reactive mission, it is unsurprising that much of the

recent discussion concerning the proper scope of the judiciary’s role in the

legislative process has centered on statutory interpretation and how the

courts should construe imprecise, defective, or ambiguous statutory text.

Thus, when the guardrail gives way, causing some poor unfortunate to

land with a disagreeable thud, the question becomes whether the

paramedic is best advised to rescue the victim (the traditional approach);

to report his vital signs and await further instructions (the modern conservative approach); or to back over him in the van, for emphasis (the

textualist approach).227

In the last ten years, judges, legislators, and scholars have exhibited

growing interest in improving the judiciary’s ability to affect the development of legislation by increasing the quantity and quality of interbranch

communication. The explanation for this growing interest is at least threefold. First, all badly drafted legislation exacts an unnecessary toll on the

judiciary in the form of resources wasted on needless statutory interpretation. The sooner the problem is called to Congress’s attention, understood,
Effects of Legislation on the Workload of the Courts

80

and corrected, the better. Second, even well-crafted legislation can exert an

impact on judicial resources by increasing caseload or otherwise altering

the litigation landscape to an extent not anticipated by Congress. If

Congress receives prompt and accurate forecasts of the impact of proposed

legislation on the courts, it will be better able to assess whether a proposal’s virtues justify the accompanying price tag. Third, as caseload and

other burdens on the federal courts rise, so too does the need for thoughtful judicial reform legislation enabling the courts to better accommodate

those burdens. If Congress is kept abreast of the judiciary’s problems and

is furnished with possible solutions, the continued health and well-being of

the third branch can be better preserved.

In all three cases, the operating assumption of those interested in improving interbranch communications is that the judiciary is well situated to

furnish the other branches with accurate information that may be helpful

in developing legislation affecting the courts. In short, the legislative and

executive folks at the top of the cliff may be experts at guardrail design

and installation, but the judicial guy at the bottom, who is dodging debris

and mopping up after accidents, is in a unique position to tell them a thing

or two about where and why stuff keeps falling.

The judicial impact assessment is one means by which the judiciary can

pass relevant information along to Congress. Whether these assessments

can and do deliver accurate information is an issue addressed by other participants in this conference. Even assuming, however, that judicial impact

assessments are accurate, there is reason to suspect that they will not be

taken seriously by Congress when it matters most—not as long as a self-interested judiciary is solely responsible for their preparation and dissemination.

As a general matter, the fact that Congress is furnished information

from a self-interested source does not mean that the source will be ignored.

That a source is self-interested does not necessarily mean that it is untrustworthy or that the information it provides is inaccurate. Moreover,

public and private sector lobbyists often have the power to attract

Congress’s attention, irrespective of their credibility or the accuracy of the

information that they impart. When the President communicates with

Congress on a pending bill, the relative trustworthiness of his information

may ultimately give way to the political reality that, if the President goes

unheeded, he will veto the measure. So, too, when a national lobbying organization furnishes Congress with information, Congress’s inclination to

be skeptical of a self-interested source may be tempered by the recognition
Overcoming the Competence/Credibility Paradox

81

that if the organization is ignored, the millions strong it represents could

vote en bloc against unmindful legislators.

Federal judges, in contrast, have neither the veto power of the

President, nor the clout of a private organization capable of delivering

votes or campaign contributions. If judges are to get their way, it is because the information they supply is trusted and accurate. Judges are respected constituents whose views are taken seriously by their respective

representatives in Congress. By virtue of their past accomplishments and

present station, their views have an aura of credibility that compensates, to

some extent, for their lack of political power. At the same time, the more

aggressively the judiciary advocates potentially controversial positions that

coincide with its institutional self-interest, the greater the risk that this

aura of credibility will become marred. From this it follows that judicial

impact assessments produced by the judiciary alone are at risk of being

called into question whenever the estimated impact is great enough to become an issue of political significance, to the extent that Congress perceives it to be in the judiciary’s self-interest to exaggerate judicial impact.

The resulting paradox is that the judiciary, by virtue of its expertise and

access to relevant information, may be in sole possession of judicial impact

data critical to intelligent congressional decision making. At the same time,

the judiciary, by virtue of appearing self-interested and being insufficiently

powerful politically, risks being ignored if it acts alone in providing such

information. In other words, what makes the judiciary a uniquely competent source of information also makes it an insufficiently credible source.

What this competence/credibility paradox suggests is the need for an

entity close to, yet independent of, the judiciary to participate in the impact assessment process. At the risk of overstaying the welcome of the cliff

analogy, the trick is to find a trusted intermediary, who can pass the

paramedic’s ideas along to the builders, unencumbered by the implications

that those ideas are merely a product of the paramedic’s desire to avoid

work and simplify his life.

 In the section following, I look at how the competence/credibility

paradox played itself out over the course of the Federal Courts Study

Committee’s deliberations, culminating in its recommended creation of an

Office of Judicial Impact Assessment (OJIA) within the judiciary. In the

next section, I argue that locating the OJIA in the judiciary, particularly at

a time when the judiciary was becoming embroiled in a series of unusually

contentious disputes with the other branches of government, may have

compromised the credibility of the judiciary’s impact statements and re-
Effects of Legislation on the Workload of the Courts

82

lated data in the eyes of Congress. In the third section, I briefly suggest the

possibility of creating an independent Office of Interbranch Relations to

screen and clear impact assessments prepared by the judiciary as one way

to preserve the judiciary’s role in developing impact assessments, while at

the same time ensuring their credibility.

The Competence/Credibility Paradox on the Chalkboard:

Development of the Federal Courts Study Committee’s

Recommendation of an Office of Judicial Impact Assessment

The development of the Federal Courts Study Committee’s call for establishment of an OJIA within the judiciary illustrates tensions that the competence/credibility paradox creates.

The Federal Courts Study Committee was created by Congress through

the Federal Courts Study Act of 1988.228 The Act provided for the establishment of a committee within the Judicial Conference, composed of

fifteen members selected by the Chief Justice, who were to be

“representative of the various interests, needs and concerns which may be

affected by the jurisdiction of the Federal courts.” The marching orders of

the committee were to: (1) study the federal courts and issue a report

within fifteen months; (2) recommend any changes in the law deemed advisable; (3) develop a long-range plan for the judicial system; and (4) make

any other recommendations deemed advisable.

Enhancing congressional responsiveness to the needs of the judiciary

was on the committee’s table from the very beginning. Initially considered

were suggestions to establish a council of law revision within the executive

branch—a proposal that has been advanced from time to time over the

course of the past century.229 On February 3, 1989, Committee Chairman

Judge Joseph Weis, Jr., called the first meeting of the committee to order.

The guest speaker at that meeting was Professor Daniel Meador, who

made the following observation in his introductory remarks:

In the countries of continental Europe and in England . . . they

have offices . . . staffed by very able, high-ranking civil servants

and lawyers who are constantly monitoring the judicial system,

spotting its problems, recommending legislation to cure defects

. . . . It may be that a permanent office in the Justice Department

could be charged with this responsibility specifically by statute

. . . . There may be various ways, but I do think [that this issue]

is well worth your thinking about so that when you terminate
Overcoming the Competence/Credibility Paradox

83

your work, you leave in place . . . a permanent, ongoing mechanism for dealing with these problems.230

Chairman Weis concluded that first meeting by dividing committee

work assignments among three subcommittees, giving to Judge Richard

Posner and his Subcommittee on Role and Relationships the task of exploring, among other issues, “the partnership with Congress.”231 The next

week, the Posner subcommittee met for the first time and resolved to

explore whether:

we can design a machinery that will enable the courts to communicate better with Congress—to give Congress feedback on

the operation of its statutes in practice—and Congress to communicate better with the courts regarding the practicability of

various proposals for judicial reform.232

In April 1989, subcommittee reporter Larry Kramer circulated a memorandum to subcommittee members, reiterating that “Congress should

know how its laws are working in practice. This is true both for laws that

regulate the courts and for substantive laws. A means to provide such information on a regular basis would be desirable.”233 To that end, Kramer

resurrected Meador’s suggestion that Congress create a commission on law

revision akin to that in England.234

By June, the subcommittee had abandoned the executive branch in favor of “an arm of Congress—not an independent agency, but more along

the lines of the comptroller” as the home for an agency or organization

that would serve a number of functions.235 Among its functions, Kramer

told the committee, would be “to make recommendations for legislation

Congress has proposed on how to structure it [legislation] to minimize

judicial impact.” To that end, Kramer solicited the assistance of Professor

John Donahue to develop

some general propositions about how to think about making

predictions about not just what the effect of the law will be in

terms of will it produce a lot of cases, but within the structure of

the law, what kinds of cases can one expect to see more of than

others, and then how we can think about structuring the law to

minimize that impact.236

As of July 21, 1989, the Posner subcommittee proposal had jelled: “We

recommend that Congress create an agency to engage in ongoing review of

the use of federal judicial resources,” called the Office of Judicial Impact

Assessment.237 Recognizing that “success depends on how the agency is
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84

organized,” the subcommittee recommended that the OJIA be “an independent support agency within the legislature, like the Congressional

Research Service,” with a staff removable only for cause.238 Among the

OJIA’s tasks would be “to predict what kinds of cases are likely to arise

under particular legislation.”239

At the July 31 meeting of the committee, reaction to the proposed creation of the OJIA was guarded. “[W]hy is it in the legislative branch rather

than the judicial branch[?],” inquired District Judge Jose Cabranes. “I have

no problem with that,” he continued, “but I suspect that some members of

the judicial branch might wonder whether it wouldn’t be, in a sense, too

independent of judicial perspective or judicial interest or concern.”240

Judge Levin Campbell echoed the same concern:

I [am] worried a little bit about whether an agency that was put

in the legislative branch exclusively with tenured officials would,

at some point, assert itself in a way to not intimidate the judiciary but to start getting a particular point of view expressed to

the judiciary. Of course, the legislative branch is very powerful.

It can be because they have what we need—money and resources—and there is always the possibility that people in an

agency of that sort would develop a sense that they sort of ought

to be running the show a little bit.241

The concerns of Judges Campbell and Cabranes underscore the competence component of the competence/credibility paradox: An entity completely divorced from the judiciary would be insufficiently attuned to the

needs of the third branch to assess judicial impact effectively. It could develop other agendas that might interfere with accurate, good-faith impact

forecasting. Moreover, to the extent that the judiciary would be suspicious

of—and thus reluctant to share information with—such an office, the ability of the OJIA to gather relevant data from the judiciary would be further

hampered.

On the other hand, the advantage of locating the OJIA in the Congress

goes to the credibility half of the competence/credibility paradox:

Legislators would perceive an independent agency within the legislature as

credible and would take its impact assessments seriously. Although

Congressman Carlos Moorhead’s initial reaction to the Posner proposal

was to say that, “I think we’d respond better if the courts [came] to us and

[told] us they have a real serious problem that has to be taken care of than

if we had just one more agency in the Congress,”242 he was ultimately

persuaded by Senator Charles Grassley, who disagreed:243
Overcoming the Competence/Credibility Paradox

85

[T]he power of the Congressional Budget Office just on appropriation is a leading indicator of an impact that an agency of

Congress can have, because the estimates that they make on

budget as it affects a particular program—if Senator X wants to

stand up and suggest Program X, and if they say it is going to

cost $1 billion instead of $100 million, it practically makes it

impossible to get done. . . . And if you were thinking in terms of

something that would force that sort of consideration on the

part of Congress it could make a real difference.244

Asked, “What would be a meaningful kind of [judicial impact] statement

to you?” Senator Grassley sounded the credibility theme explicitly: “I

don’t know whether it is the statement, itself, but it is respect for the

statement,” he replied, respect such as that accorded the reports of such

congressional agencies as the General Accounting Office or the

Congressional Budget Office.245

At the October 29 and 30, 1989, meeting of the committee, when a

vote on the proposal was scheduled, Robert Feidler, then legislative and

public affairs officer for the Administrative Office of the U.S. Courts, circulated to committee members a memorandum he had prepared for his director.246 The memo stressed the relative competence of the judiciary to assess

judicial impact: “All of the objectives [of the proposed OJIA] are now

being done by the [Judicial] Conference,”247 Feidler wrote. “When

Congress asks for an impact statement . . . the [Administrative Office] has

responded in a timely and thoughtful manner.”248 “There is simply no

reason to believe that an agency within the Legislative Branch would be

better capable of advising the Members than is the Judicial Branch directly.”249

At the same time, the memo conceded that Congress would perceive as

credible and take seriously the judicial impact assessments of a congressional OJIA to a far greater extent than assessments submitted by the

Administrative Office or the Judicial Conference:

To place these functions in the Legislative Branch in a support

agency as envisioned by the subcommittee would eviscerate the

role of the Judicial Conference in the legislative process. . . . To

create a specific body within the Legislative Branch to perform

these functions would make the Judiciary non-players in many

decisions affecting the Judiciary.250

Given that the OJIA proposal did not call for the judiciary to discontinue

preparing impact assessments as it had in the past, the proposal could
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86

“eviscerate the role of the Judicial Conference” only to the extent that

Congress would trust and rely on OJIA impact assessments to the exclusion of those prepared by the third branch.

In the vote that followed, the committee “recommended in substance

that Congress create an agency to enhance inter-branch communications.”

The recommendation to locate the agency in Congress was defeated; in its

place, a recommendation that the agency be within the “judicial branch”

was approved.251

While the committee was evidently satisfied that the task of assessing

judicial impact was one that had been and should remain in the competent

hands of the third branch, the possibility that the judiciary would appear

self-interested and that its impact assessments could therefore lack credibility with Congress remained a concern. On the basis of a November 15,

1989, report of the Subcommittee on Administration, Management and

Structure,252 a November 27 tentative draft of the committee refined the

October 30 recommendation by proposing that the OJIA be located

specifically in the Federal Judicial Center, rather than in “the judicial

branch” generally.253 Although impact forecasting had previously been

undertaken by the Administrative Office, the tentative draft explained that

the “advantage of placing this office in the Center is that it would be separate from operational entities and thus would be more likely to be perceived as being an objective agency rather than an advocate agency.”254 To

that end, “the Office would not endorse or condemn legislation. It would

confine itself to an analysis of the impact of that legislation.”255

The tentative draft’s refinement was approved by the committee on

December 10, 1989. A subsequent draft, dated December 22, 1989, was

disseminated for public comment, with the reference to the FJC as “an objective agency rather than an advocate agency” deleted.256

In response to this proposal, the committee of the Judicial Conference

that oversees the Administrative Office objected to locating the OJIA in the

FJC. Again the competence theme was emphasized: “The Committee on

the Administrative Office of the Judicial Conference . . . does not support

the recommendation to create an Office of Judicial Impact Assessment in

the Federal Judicial Center,” wrote Conference Committee Chairman

Judge Harlington Wood, Jr., to the Federal Courts Study Committee.257

“We believe this responsibility should remain under the direction of the

Judicial Conference. Impact assessments are currently being made for the

Conference by the Administrative Office which has firsthand familiarity

with these matters.”258
Overcoming the Competence/Credibility Paradox

87

In the end, the position of the Committee on the Administrative Office

of the Judicial Conference prevailed. On February 15, 1990, the committee

voted to substitute “the judicial branch” for “the Federal Judicial Center,”

which is how the recommendation was phrased when the committee report

was issued in April. Four of the committee’s fifteen members dissented, arguing that the committee should have recommended locating an OJIA in

Congress.259

The Competence/Credibility Paradox in Action: Implementing

the Federal Courts Study Committee’s Recommendation

In response to the committee’s recommendation, the Judicial Conference

established an Office of Judicial Impact Assessment within the

Administrative Office. With the judicial OJIA in place, the critical question

became whether the competence the OJIA brought to bear in forecasting

judicial impact would be compromised by questions concerning its credibility.

The final draft of Posner’s subcommittee report, issued after the full

committee had concluded its OJIA deliberation, persisted in its support for

a congressional OJIA, arguing that “precisely because [the Administrative

Office is] not part of Congress, they have only a limited ability to demand

attention and are often treated more like lobbies than helpmates.”260 The

relevance of this observation was brought home by a series of contemporaneous events that politicized the Administrative Office, the Judicial

Conference, and the federal judiciary in unprecedented ways.

First, the so-called “war” on drugs and crime waged by Congress and

the President in the 1980s was taking its toll on the judiciary in the 1990s

in a variety of ways: More prosecutions translated into burdensome

caseloads;261 sentencing guidelines limited judicial discretion in ways many

judges deemed unfortunate;262 and the rising percentage of essentially local

street crime cases on the dockets had made judging a more routine and

thus less interesting line of work.263 The result was a highly publicized

confrontation between judges and the Justice Department. As reported on

the front page of the Washington Post Metro section:

A long running feud between U.S. Attorney Jay Stephens and

some federal judges in Washington flared anew at a judicial conference here today when Stephens suggested they don’t work

hard enough and shouldn’t complain that he is loading dockets

with small drug cases . . . “I think the American public has expressed itself very clearly,” Stephens told the judges . . . . “While
Effects of Legislation on the Workload of the Courts

88

the court may be willing to substitute its judgment, that’s not the

way the system works.”264

Second, Senator Joseph Biden’s 1990 introduction of the Civil Justice

Reform Act precipitated a severe reaction from the federal judiciary, which

soured a previously amicable relationship between the third branch and

the chair of the Senate Judiciary Committee. The task force that developed

the bill included some former judges but no sitting federal judges—an inauspicious start, in the view of some judges.265 As introduced, it would

have imposed a civil case management system on all district courts, much

to the chagrin of many federal judges, who criticized it as legislative

“micromanagement” and a threat to judicial independence.266

Senator Biden delayed further action on the bill for several months,

pending efforts to negotiate a mutually agreeable compromise with the

Judicial Conference. Compromise was not forthcoming however, in part

because different committees within the Judicial Conference were themselves at odds, and Senator Biden made his frustration with the judiciary’s

behavior known at a subsequent hearing on the bill.267

Third, acrimony over the Civil Justice Reform Act spilled over into a

companion title of the 1990 Judicial Improvements package, which called

for an increase in the number of federal judges. The Judicial Conference

submitted its recommendations as to how many judgeships were needed

and where. When the Senate Judiciary Committee deviated from Judicial

Conference recommendations, some representatives of the judiciary publicly criticized the deviation.268 As Judge Avern Cohn put it:

[H]ere too, Congress appears to want to go its own way. The

proposed increases do not follow the Judicial Conference recommendations, which are based on carefully considered workload statistics. Indeed, Title II calls for increases that lack

justification in the most liberal of standards for determining the

number of judges for some districts.269

This public criticism was not well received by Senator Biden:

When it comes to judgeships, the Judicial Conference, as I said,

seems to be of the view that the best defense is a good offense.

For several weeks now, Judicial Conference officials and individual judges have had nothing but criticism, invective and complaints about the 77 judgeships that Senator Thurmond and I

have proposed creating. They accuse us of patronage, of “doling

out plums,” and “playing politics.”
Overcoming the Competence/Credibility Paradox

89

I think it is time, once and for all, that the curtain is lifted.

When it comes to playing politics and doling out patronage, the

Judicial Conference has no equal that I have seen before this

Committee.270

Concluded one journalist:

For the judiciary—which traditionally tries to avoid such public

politicking—this spat is yet another in a series of troublesome

encounters with Congress. The two branches have maintained a

working relationship, but not without considerable strain.271

The confluence of these events could not have come at a worse time for

the fledgling Office of Judicial Impact Assessment. “As for the Legislative

Affairs Offices in the executive and judicial branches,” Kramer observed in

a 1991 article, “these are basically lobbies for their respective branches,

and nothing would cripple a planning agency faster than to be seen as simply another lobby.”272

While Kramer’s point may be overstated, it is difficult to deny that the

OJIA’s efforts to establish its credibility with Congress have been complicated by the recent, high-profile political squabbling between the judiciary

and the other branches of government. To be sure, the Administrative

Office’s forecasts of judicial impact have been accepted readily by members

of Congress in cases where the estimated impact is slight, and sponsors can

cite to the assessment in support of the legislation.273 On the other hand,

forecasts of significant impact—including but not limited to estimates

formally presented as judicial impact assessments—have been greeted with

greater skepticism.

One example of this skepticism occurred in the context of the previously discussed judgeships bill. After accusing the judiciary of having “no

equal” when it came to “playing politics and doling out patronage,”

Senator Biden questioned the empirical basis for the Judicial Conference’s

judgeship recommendations:

Every single recommendation regarding the court of appeals

made by the Judicial Conference corresponds exactly to what the

circuit council for each circuit asked for. The best example we

could find—and I found astonishment in the Justice Department

as well as here among Democrats as well as Republicans—the

best example of the Judicial Conference’s “whatever you want,

you get” approach to court of appeals judgeships is the Sixth

Circuit.
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90

In 1988, the Sixth Circuit judicial council asked for no new

judgeships. The Judicial Conference rubber-stamped that request: no new judgeships. But after transmitting that recommendation . . . the Conference changed its mind. It bumped that recommendation from zero to five new judgeships overnight. There

must have been one heck of an influx of cases in the Sixth

Circuit.

Or perhaps it is more accurate to say that the Sixth Circuit

council changed its mind and decided it wanted more, and the

Conference gave it more. . . .

It sounds a lot more like patronage and politics to me than

hard-core analysis—an analysis that just doesn’t stand up.274

As a second example, the caseload statistics submitted by the judiciary

in support of its 1994 annual budget request were recently called into

question—this time by the Appropriations Committee:

The Committee is concerned that the caseload statistics on

which the Judicial Conference bases the budget request for the

Federal Courts may be overestimated. As the Committee noted

during the judiciary’s fiscal year 1993 hearing in February, the

budget submission overestimated criminal filings for 1991 by

14% and for 1992 by 16%. These overestimates are particularly

problematic during periods of constrained budgets. The

Committee expects that the courts will improve the process by

which they estimate resource requirements.275

Third and finally, in the Senate Judiciary Committee Report accompanying the Violence Against Women Act, Chairman Biden challenged the

accuracy of the judicial impact assessment. The impact assessment estimated that Title III of the legislation would generate 58,800 suits, with

13,450 reaching the federal courts at a cost of $43.6 million and 450 staff

years—an obvious threat to the viability of the legislation, if true. The

chairman and sponsor of the legislation was unconvinced:

[T]he judicial impact statement of the Administrative Office of

the Courts is based on [an] improper interpretation of the

statute. Its wild estimates of 450 staff years and 53,000 cases are

based on a reading of the statute that includes random crimes

and domestic violence cases. Since those cases cannot be brought

under title III, the judicial impact statement is obviously inaccurate.276
Overcoming the Competence/Credibility Paradox

91

Overcoming the Competence/Credibility Paradox: The

Establishment of an Independent Office of Interbranch

Relations

That Congress has, on a number of recent occasions, challenged the judiciary’s workload projections in impact assessments and elsewhere, does

not necessarily call into question the judiciary’s competence to make such

projections or even the accuracy of the projections themselves.277 The

judiciary has readier access to caseload information than the other two

branches of government. It has the most experience to date in gathering

and interpreting such information, and is no less able than either of the

other branches to retain qualified, technical support staff. It has, represented in its judges, the accumulated expertise and sensitivity requisite to

assessing how given statutory changes may affect judicial administration or

alter the pace or character of litigation. And it has the political independence to make assessments without regard to their public popularity. In

short, if any branch of government is competent to assess the impact of

legislation on the courts, it is the judiciary.

The problem is one of credibility, and as I have argued here, this is a

problem that will not go away as long as judicial impact assessments are

produced and distributed by the judiciary alone. One alternative worth

considering is the creation of an independent entity that would, among

other tasks, assist in judicial impact assessment. Such a proposal is nothing

new. In fact, former circuit executive Paul Nejelski offered just such a suggestion in response to the credibility concern I raise here, in an article he

wrote over a decade ago:

No matter where we assign the responsibility, however, we must

recognize the widespread fear of institutional bias—real or imagined. Some may feel that courts will err on the side of exaggerating the workload, or the Justice Department will overestimate

the cost of granting attorneys’ fees, or other groups will similarly

bias the results . . . . A possible solution to this diversity of

sources and the need for independence might be to create a consortium of the three branches.278

A detailed description of the office I propose creating may or may not

be the subject of an article worthy of the trees that would sacrifice themselves for its publication. It is, in any event, beyond the modest scope of

this effort. In general, however, I would recommend the creation of an independent Office of Interbranch Relations (OIR), with a rotating member-
Effects of Legislation on the Workload of the Courts

92

ship comprised of representatives from the three branches of government

(possibly the bar as well) and a limited support staff. Among its functions

would be to review proposed legislation for the purpose of assessing judicial impact and recommending revisions to reduce untoward impact—the

first of three functions identified by the Posner subcommittee for its illfated congressional OJIA. Unlike the Posner subcommittee proposal, however, the OIR would not develop its own judicial impact projections, but

would limit itself to reviewing and then accepting, modifying, or rejecting

judicial impact assessments prepared by the judiciary.

The potential advantages of this approach would be twofold. First,

competence concerns would be satisfied, in that the judiciary would remain

in charge of developing judicial impact projections. Second, credibility and

the appearance of credibility would be ensured by the independence of the

office. Experience with the Federal Courts Study Committee, where legislation implementing the committee’s recommendations was enacted less than

seven months after the committee had issued its report, suggests that

Congress may be more receptive to recommendations made by an interbranch entity on matters of judicial reform. Impact assessments cleared by

the OIR, as well as other reforms recommended, might thus be taken more

seriously by Congress than if propounded by the judiciary alone.

There are at least two potential objections to establishing an OIR for

the purpose of reviewing judicial OJIA assessments. First, it may be argued

that creating an office to review impact assessments developed by another

office would involve a substantial duplication of effort. Three responses

come to mind: first, some duplication is tolerable to the extent it culminates in more credible impact assessments; second, the OIR could develop

standards for reviewing OJIA assessments, possibly modeled after the

Administrative Procedure Act, so as to keep unnecessary duplication of effort to a minimum; and third, if the OIR improves interbranch communications as intended, it is realistic to expect that the OJIA will coordinate its

development of impact assessments with the OIR, further reducing the

latter’s need to reinvent the wheel.

A second potential objection is that the two-tier approach to impact

assessment would be too cumbersome to provide Congress with timely information. Again, there are three responses: First, as alluded to in the preceding paragraph, if the OJIA coordinated its efforts with those of the

OIR, unnecessary delays could be eliminated; second, many of the most

significant pieces of legislation (in terms of their impact on the courts) percolate through the Congress over the course of a two-year period, render-
Overcoming the Competence/Credibility Paradox

93

ing inconsequential the limited delays associated with OIR review; and

third, there is nothing to prevent the judiciary from submitting an unreviewed impact assessment to Congress, should time be insufficient to permit OIR scrutiny.

While it is outside the scope of this paper, it is important to emphasize

that the role of the OIR would by no means be limited to reviewing impact

assessments. Rather, it would also be well positioned to serve the other

two functions that the Posner subcommittee envisioned for its proposed

congressional OJIA: to review decisions by the courts and recommend appropriate legislative reforms in light of those decisions and to improve

communications between the branches.

The OIR would thus incorporate and implement a number of related

proposals that have frequently been recommended in the past but never

implemented, or implemented only sporadically. Reviewing bills with reference to a legislative “checklist”; recommending changes in proposed or

enacted legislation to minimize unintended statutory ambiguities; and

alerting Congress to significant judicial interpretations of federal statutes,

are but a few of the services such an office could perform.279 Moreover,

such an office would improve interbranch understanding in ways that an

office populated exclusively by representatives of a single branch could

not.280 By periodically rotating office membership, a significant number of

judges, legislators, Justice Department personnel and their staffs would,

over time, become exposed to the problems and perspectives of the other

two branches. Moreover, judges reluctant to communicate with Congress

directly may be willing to do so through the judiciary’s liaison at the OIR.

Conclusion

The judiciary is a uniquely competent but, because of the self-interest that

some may ascribe to its estimates of judicial workload, an insufficiently

credible generator of judicial impact assessments. A congressional OJIA,

favored by the Posner subcommittee of the Federal Courts Study

Committee, would be in a position to offer credible service with diminished competence. On the other hand, a judicial OJIA, favored by the

Federal Courts Study Committee as a whole, would be in a position to offer competent service with diminished credibility—a proposition at least

anecdotally supported by experience to date with such an office. Assigning

the task of reviewing impact assessments generated by the judiciary to an
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independent Office of Interbranch Relations could potentially provide the

optimal mix of competence and credibility.
95

Proceedings from the Theory Session

The following is a summary of those points addressed in the oral presentations or plenary discussions of the theory session that extend or supplement the material provided in the preceding written contributions.

How Does the Political Environment Affect Judicial Impact

Assessment?

In response to Munger’s and Belluck’s assertions that judicial impact

statements are being promoted primarily by judicial insiders, Krislov

pointed out that judicial impact statements are neutral instruments that

can be used “both ways.” Stressing that “the impact statement is important because mindless avoidance of planning [in the courts] is a penalty on

the public,” he said, “I really don’t believe there is anything inherently antidemocratic, antimajoritarian, and certainly not conservative about planning because the alternative [of lack of planning] is precisely what judges

claim—that the recent emphasis on passing acts pertaining to priority

criminal matters will drive out [of the courts] exactly the type of civil

litigation that is meant to accomplish social ends.”

Charles Geyh, associate professor of law at Widener University, observed that while judicial impact statements can be used simply to provide

Congress with information on the cost of adopting a specific program, they

can also be used to lobby against adoption of a program because of its

“enormous cost.” He said “the problem comes when pressure on the judiciary brought about by the caseload increases of the last decade cause it to

go beyond the first use and couple information on the cost of a proposed

program with the lobbying function in ways that create an antimajoritarian concern.”

Finally, Nancy Potok emphasized that judicial impact statements are

“just one small piece of a vast continuum” in the process of enacting legislation and effecting change in the courts. “Impact statements are useful in

strengthening the legislative debate by providing information that should

be available in an organized fashion, but probably would not be,” she said.

But “the idea that impact statements provide sufficient information to be

the end-all-be-all for policy makers making decisions that have a

significant effect on the court system and the public is not the case at all.”
Effects of Legislation on the Workload of the Courts

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Where Do We Go from Here?

Munger and Belluck stressed that the judicial impact assessment process

should be opened up to allow the participation of ordinary citizens and

public interest organizations. They said such participation would counter

the public’s feelings of “a general isolation from government processes

[and their perception of] special interest control over the democratic process of our country.”

Krislov suggested that it is important for researchers to focus on the

implications that legislative proposals have for the costs and benefits of

bringing disputes to court. By doing this, he said, it may be possible to

quantify the number of cases that new legislation “prices in” or “out of”

the courts.
97

V. Applied Session

Panelists in the applied session of the conference were asked to discuss certain pragmatic issues involved in the production of judicial impact assessments, such as: When are judicial impact assessments needed? What methods should be used to assess impact? What data are required? and What is

the appropriate audience for the assessment once it is produced? In addressing these issues, participants drew on their experience in performing

judicial impact assessments in a variety of different environments and explained how the characteristics of those environments shape the type of assessment that is produced.

The first contribution to this session is from Nancy Potok of the

Administrative Office of the U.S. Courts. Potok’s paper discusses the issues

that led to the creation of the AO’s Judicial Impact Office and describes

the procedures currently employed by the Judicial Impact Office to assess

the effect of federal legislation on the U.S. courts.

The second contribution to this session is from Thomas Henderson,

Marilyn Roberts, and Maria Schmidt of the National Center for State

Courts (NCSC). Their paper summarizes a pilot project undertaken by the

NCSC on behalf of the Conference of State Court Administrators. The

purpose of this project was to explore the feasibility of performing impact

assessments on the effect of federal legislation on state courts. According

to the authors, because of the increasingly significant proportion of the

state court docket that is attributable to federal legislation, there is an

acute need for such analysis to support judicial planning at the state level.

The third contribution to this session is from Janet McLane, director,

Judicial Services and Activities Division, Washington State Office of the

Administrator for the Courts. McLane’s paper describes the many constraints faced by state administrative offices in conducting judicial impact

assessments. In addition, McLane explains how her office uses assessments

of the impact of state legislation on the state court as one tool for educating a rapidly changing state legislature about the effects of legislative enactments on the courts.

The fourth contribution to this session is from William Jenkins of the

General Accounting Office. Jenkins’ paper presents a comprehensive typology of judicial impact methods. Jenkins also discusses insights he derived from his work on the Federal Criminal Justice System Workload
Effects of Legislation on the Workload of the Courts

98

Model regarding how current data-collection methods should be altered so

as to provide the ideal data necessary for judicial impact assessment.

Finally, the fifth contribution to this session is from Frank Arnett and

Fletcher Mangum of the Federal Judicial Center. Their paper describes an

exploratory retrospective analysis of the effect of existing federal legislation on the workload of the courts conducted by the Center’s Planning and

Technology Division. According to the authors, the purpose of this work is

to enhance the ability of researchers to forecast the impact of proposed legislation by providing information on the judicial impact of existing legislation.
99

Development and Ongoing Operations

by Nancy Potok

Chief, Judicial Impact Office

Administrative Office of the U.S. Courts281

This paper provides a brief overview of the history and processes involved

in the preparation of judicial impact statements by the Administrative

Office of the U.S. Courts, as well as their use as a tool for communication

in the relationships among the three branches of federal government.

Background

In 1989, the federal judiciary was facing a critical juncture, experiencing

both a substantial increase in workload resulting from legislation that had

been enacted since the late 1970s and a resultant severe shortage of funding and personnel, including judges, to carry out its mandates. It was clear

that additional efforts had to be taken to secure sufficient congressional

funding for the judiciary.

Up to that time, the need for judicial impact statements, done by either

the judiciary or Congress, had been discussed within both branches of government for a number of years and had been studied extensively. However,

numerous obstacles to this type of analysis frequently had been cited, and,

as a result, the analyses were not done on a routine basis.

However, this work was being done informally within the

Administrative Office. Because it was being done by various elements

within the organization, the results, particularly the costs and related

workload resulting from proposed legislation, had never been presented

within a formalized, consistent framework. The director of the

Administrative Office authorized the production of judicial impact statements in August 1989 to allow the analyses to proceed in a cohesive, systematic, easily recognizable, and usable manner. In 1990, the Federal

Courts Study Committee, a congressionally mandated blue-ribbon commission studying the judiciary, reaffirmed the need for impact analyses of

legislative proposals.282

In March 1991, as part of a major reorganization resulting from passage of the Administrative Office Personnel Act, the Judicial Impact Office

was created, and I was selected as its chief. The office staff currently consists of myself and three analysts.
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100

Initiation and Process

In a very short time, judicial impact statements have become an important

advisory and policy-making tool in all three branches of the federal government. Judicial impact statements analyze proposed and enacted legislation and executive branch initiatives to determine how they will affect the

federal judiciary. This includes the effect on court operations, workload,

the number of cases filed in the courts, and federal jurisdictional questions,

such as whether the legislation would federalize areas of law and policy

that have traditionally been handled in state courts. The impact statements

quantify these effects and contain estimates of the resources, both dollars

and people, that would be needed by the judiciary to implement the proposals.

The decision to prepare an impact statement is made by a variety of

sources. In most instances, the Administrative Office’s Legislative,

External, and Public Affairs Office identifies a bill that is likely to have an

impact on the judiciary, based on its knowledge of the bill’s contents, congressional or judicial interest and activity, and the likelihood of its passage.

On occasion, members of the Judicial Conference or chairs of Judicial

Conference committees request that an impact statement be performed on

specific legislation. (The Judicial Conference is the policy-making body of

the judiciary and consists of twenty-seven federal judges headed by the

Chief Justice of the Supreme Court.) Judicial Impact Office staff also identify bills and executive branch initiatives that, based on their experience

and analyses of similar activities, may result in significant impact on the

federal judiciary and should receive heightened analysis.

Once the need for an impact statement has been identified, substantive

information is gathered by the Judicial Impact Office staff from experts located both within and outside the judiciary. Within the Administrative

Office, the program and statistics divisions and General Counsel’s office

provide in-depth analyses based on knowledge of court operations and

programs. The Federal Judicial Center also contributes its analyses. The

Judicial Impact Office gathers data, if needed, from executive branch

agencies such as the Department of Justice, state and local court employees, legislative staff, and relevant issue-advocacy groups. Comparisons are

also made, if possible, to similar legislation that has already been analyzed

by this office. If there are conflicting views on the impact of the proposals

being analyzed, the Judicial Impact Office acts to resolve these differences

or presents the varying views in the impact statement.
Development and Ongoing Operations

101

Finally, in conjunction with the Budget Division of the Administrative

Office, the Judicial Impact Office develops the resource costs or savings

(staff and dollars) associated with the changes in workload and any other

activities arising from the legislation. Separate breakdowns of costs for the

various components of civil and criminal cases have been developed, using

average workload measurement formulas, personnel ratios, and current

fiscal year budgets, including any supplemental appropriations. In fact, one

of the major accomplishments of the office has been to work with the program and budget divisions in the Administrative Office to develop and

standardize costing methods for various types of cases.

The Judicial Impact Office then assembles a draft judicial impact statement incorporating the analyses and associated resource costs or savings.

Each statement contains detailed assessments of both the potential and

probable effects of each relevant section of the legislation. Sources of information, explanations of any analytical assumptions, and other factual

data used within the analysis are also provided. The draft is reviewed by

the experts who contributed to the analysis, comments are incorporated,

and a final impact statement is then presented to the director of the

Administrative Office for transmittal to the Judicial Conference, members

of Congress, and congressional staff. The entire process can take anywhere

from a few days to a few months, depending on the complexity of the proposal being analyzed and the time available.

Retention of Objectivity

Throughout the development and completion of the impact statements, the

Judicial Impact Office strives to maintain its objectivity and impartiality.

The impact statements produced by the office represent objective analyses

of the effects of proposals. They do not represent or imply a position either

supporting or opposing a particular proposal, even when the Judicial

Conference has taken a position in that area. However, if the Judicial

Conference has taken a position on a bill, that position is briefly described

in a separate section within the impact statement.

We have worked very hard not to be perceived as either advocates or

critics of the subjects being analyzed. Thus, a separation is maintained between the Legislative Affairs Office, which is responsible for representing

the Judicial Conference position, if any, on legislation, and the Judicial

Impact Office. One of the primary goals of the office has been to maintain

the credibility of the analyses by resisting any attempts to shape the analy-
Effects of Legislation on the Workload of the Courts

102

ses to support the Judicial Conference position. In fact, by establishing this

modus operandi early on, efforts to influence the outcome of the analyses

to conform to preexisting positions have been discouraged and have not

materialized. As a result, impact statements have sometimes shown that

proposals opposed by the Judicial Conference would have a small cost to

the judiciary and vice versa.

Use and Distribution

Impact statements have been used by a wide range of policy makers

throughout the federal government. Within the judiciary, they are used to

assist the Judicial Conference when it is deliberating legislative proposals.

Impact statements have also been used as part of the testimony of federal

judges appearing at congressional hearings.

Members of Congress and their staff are provided copies of impact

statements to assist them in understanding how proposed legislation may

affect the judiciary. Impact statements often highlight potential problems

in the legislation, including unintended results and technical errors or

omissions, and legislation has been redrafted as a result. Impact statements

have been introduced into hearing records by members of Congress and

have been cited in congressional committee reports on legislation. Because

impact statements contain cost estimates, they are often used by the

Congressional Budget Office when it fulfills its statutory requirement to

estimate the cost of proposed legislation.

Impact statements are also provided, upon request, to the Office of

Management and Budget and to other executive branch agencies such as

the Department of Justice. Although executive branch agencies have no jurisdiction over the judicial branch, it is often useful for policy makers in

the executive branch to read an in-depth analysis of complex legislation

from the judiciary’s viewpoint, such as for the crime bills considered by

Congress during recent sessions.

During recent sessions of Congress, impact statements were written on

several bills, a few examples of which are the Violent Criminal

Incarceration Act of 1995; Preliminary Assessment on the Comprehensive

Regulatory Reform Act of 1995; the Violent Crime Control and Law

Enforcement Improvement Act of 1995; the Violent Crime Control and

Law Enforcement Act of 1994, which included the Violence Against

Women Act; the Family and Medical Leave Act; the Health Security Act of

1994; the Smoke Free Environment Act of 1994; bills to provide for inter-
Development and Ongoing Operations

103

state enforcement of state child support orders; and a bill to extend

authority for court-ordered arbitration to all district courts. Impact

statements were also prepared on Operation Triggerlock, the Justice

Department’s initiative to bring firearms cases into federal court and on

the Social Security Administration Streamlined Disability Appeals Process

Proposal.

The Judicial Impact Office also conducted an in-depth review and cost

analysis of the recommendations contained in the Report of the Committee

to Review the Criminal Justice Act.

Earlier impact statements have analyzed a wide range of legislation, including: (1) omnibus crime bills; (2) the Federal Courts Study Committee

Implementation Act; (3) compensation to victims of nuclear testing;

(4) mandatory drug testing of defendants on post-conviction release; (5)

establishing a right in federal court for victims of foreign torture; (6) civil

justice reform; (7) changes in asset forfeiture statutes; (8) thrift and bank

fraud prosecution; and (9) changes in courts’ naturalization responsibilities.

Future Objectives

The Judicial Impact Office is constantly refining its data collection, impactassessment methodology, and analytical assumptions underpinning its

caseload and resource estimates. The office is currently comparing projections and estimates contained in impact statements made on bills enacted a

few years ago with what has actually occurred since enactment. This will

enable us to compare our projections against actual changes in caseloads

to determine the accuracy of those projections.

We are also working with various Administrative Office program and

statistics divisions to determine ways to enhance current data collection so

as to improve our current baseline assumptions and caseload estimates.

Finally, we hope to meet with users of impact statements to learn how we

can improve our product and make it as user-friendly, informative, and

credible as possible.

Carrying out judicial impact analysis is an evolutionary process. We

have learned a lot during the past few years, and I have high hopes that we

will continue to improve in the future.

105

The Impact of National Legislation on

State Courts

by Thomas A. Henderson

with

Marilyn M. Roberts &

Maria E. Schmidt

Office of Government Relations

National Center for State Courts

Introduction

The National Center for State Courts (NCSC), on behalf of the Conference

of State Court Administrators (COSCA), is conducting a project to test the

feasibility of preparing judicial impact statements on the effect of federal

legislation on state judicial systems. The objectives of such statements are

twofold: to contribute relevant state court information to the federal policy

process for pending legislation and to assist state courts with planning for

impact once the legislation has been enacted. In form, the COSCA statements look like those prepared by state and federal judicial agencies to assess the impact of their respective legislatures on their respective court systems. But the context of the COSCA statements is very different. A

feasibility project was deemed necessary because of the complexity of the

problems of identifying how national legislation can affect state courts,

finding data that would represent the many jurisdictions involved, and

conducting the analysis in a timely manner.

The inspiration for the project is grounded in the policy concerns and

experiences of state officials. The project was initiated by several members

of COSCA who successfully perform judicial impact statements within

their own states. From their own experience, they are aware of how useful

such statements can be to inform the legislature and to plan for the effect

on the courts. The project was also a natural extension to two national

conferences on judicial–legislative relations that were funded by the State

Justice Institute, and cosponsored by the NCSC, the National Conference

of State Legislators, the American Bar Association, and the Council of

State Governments.283 One of the recommendations from that conference

was to encourage the development of judicial impact statements at the

state level. Finally, the staff of the NCSC recognized the need for a vehicle
Effects of Legislation on the Workload of the Courts

106

for objective information to support their efforts to inform Congress of

state judicial issues and to alert state judicial leaders of national policies.

Need for the Project

An increasingly important source of workload for state courts is federal

legislation. Bills are adopted in Congress that have a direct impact on state

judiciaries with no recognition of the additional demand on state resources. Examples of recent bills with such implications include the

Immigration and Naturalization Reform Act, which created new reporting

requirements for courts; a series of child support enforcement laws that

has dictated the grounds for determining support orders, mandated specific

adjudicatory procedures, and increased the workload of courts; the 1988

Drug Control Act, which dramatically increased the workloads of courts

without providing any additional support; and the Americans with

Disabilities Act, which established civil rights for a class of citizens. In

none of these instances was a formal analysis made of the potential effect

of these bills on state courts to inform the deliberations over the design of

the legislation or to support state planning to accommodate the implementation.

Given the fiscal constraints under which all levels of government operate, it is critical that choices are articulated and understood. For Congress,

ignorance about the role of state courts may undermine the effectiveness of

a national policy. For example, the Immigration and Naturalization

Reform Act assumed a disposition reporting system that does not exist in

most states. And the Drug Control Act expanded the resources available to

law enforcement and prosecution but ignored the increased demand this

placed on judicial resources. At the state level, scarce resources make it

imperative that advance planning take place, whenever possible, to ensure

effective implementation in the courts and to minimize the negative consequences of additional demands for judicial services.

Until recently, the published literature was not very encouraging about

the prospect of developing effective models. In reviewing the feasibility of

judicial impact statements, Boyum and Krislov observed in 1982:

Faced only with issues of reliability and precision, few social scientists would be comfortable with the task. Fewer still would be

sanguine about it if they were given the specification that this be

done “routinely.” And perhaps there would be none at all who

would think the task simple in a situation where even the

classification of persons is not a settled issue.284
The Impact of National Legislation on State Courts

107

Their assessment of the difficulty, if not impossibility, of the task is

echoed by others writing at the time.285 Boyum and Krislov argue that the

fundamental weaknesses are the lack of theory and the paucity of data,

themes common to the evaluation literature of the time as well.286 Over

the past decade, however, substantial improvements have been made in the

availability and the state-to-state comparability of state court caseload

data. A primary reason has been the development and widespread adoption of a model approach for collecting and using caseload information.287

Such changes over the last decade suggest the time is opportune for

another effort at judicial impact statements.

First, our understanding of court management, workload factors, and

case flow has grown in sophistication and reliability in the ten years since

Boyum’s and Krislov’s comments. In part this results from the empirical

work of such authors as Barry Mahoney and David Neubauer, who were

concerned with delay in the courts.288 This has been reinforced by the Trial

Court Performance Standards, which are in a substantial way a reflection

of the consensus among practitioners of the critical components of the

court as an organization, as well as a statement of intentions.289 Not only

do the Standards require courts to promptly implement changes in law and

procedures, but they also require the courts to inform the community

(including the legislature) of its programs and, most importantly, to

anticipate new conditions or emerging events and adjust themselves

accordingly.290

Second, improvements in the emerging conceptual framework also

reflect the institutional changes that have occurred at the state level. In

1978–1980, when earlier authors were conducting their analyses, our understanding of courts as formal organizations was very limited.

Management positions at the state and local level were still embryonic,

making it difficult to conceptualize what would be affected by legislative

action unless the jurisdiction of the bench was directly involved.291 That is

no longer the case. It is now taken for granted that state judicial systems

will be managed as formal organizations. The target of judicial impact

analysis is no longer an amorphous collection of independent judges with

nominal connections to clerks and probation officers. There are now coherent judicial organizations in most states that will serve as the target institutions for legislative impact analysis.

The third change is that the literature on the impact of national legislation on state courts is much richer now than it was in 1982. Case studies

are available that examine the effects on the judiciary of child support en-
Effects of Legislation on the Workload of the Courts

108

forcement laws,292 drug control efforts,293 and changes in diversity

jurisdiction.294 Information from these efforts, which were conducted for

very different purposes, is an empirical source for developing models of the

different ways national legislation can affect states.

Fourth, we now also have examples of successful judicial impact statements to guide this effort. In 1978–1980, the only models available were

the economic and environmental impact statements. It was difficult to

translate those experiences into a judicial context. But now, for example,

the Washington State Administrative Office of the Courts has developed

and is using a standardized judicial impact process for evaluating state legislation. And the Administrative Office has established a Judicial Impact

Office to use a standardized process to assess the potential impact of congressional action on the federal judiciary. These efforts, along with the

fiscal impact statements prepared in other state administrative offices of

the courts, provide a solid foundation on which to build.

Finally, our understanding of the purposes of judicial impact statements

is far broader than in 1982. Impact statements are no longer seen as a

means for vetoing legislation by marshaling objective evidence. Their purposes are both more modest (to increase the information available to allow

legislators to make more informed choices) and more ambitious (to serve

as the core of a planning document for the state judiciary).

Methodology

The technical problems of preparing a state judicial impact statement for

national legislation is formidable. The prospect of drawing comparable information and data from multiple court systems on ad hoc issues within a

short time frame is daunting. The experience in the states with judicial impact statements makes clear, however, that the significance of these efforts

does not rest on a quantitative analysis of the potential effects on caseload,

dispositions, or expenditures alone. Equally important is a need to identify:

(1) whether a proposed law may impact state courts; (2) how the impact is

likely to occur; and (3) whether that impact is significant. These questions

are far more prevalent at the national level because the effect on state

courts is likely to be incidental to legislation directed toward the federal

judiciary (e.g., establishing a civil cause of action for gender-based violence

directed at women), or a refinement of a national program (e.g., expanding

the program criteria for drug treatment block or formula grant funds to

include drug treatment for criminal offenders).
The Impact of National Legislation on State Courts

109

There still remain, however, the technical problems of preparing a judicial impact analysis for those laws that call for a quantitative analysis of

impact. Over the last fifteen years, the COSCA Court Statistics Committee

has been working with the NCSC to develop reliable, comparable measures of judicial activity. The result is a baseline of information on which

estimates can be made for many issues areas, as well as a cadre of experienced state officials with a knowledge of statistics and data sources.

Despite this progress, however, it can be assumed that in many instances a

universe of states—or even a significant number—cannot be found with reliable, comparable data to estimate a given impact. This will be particularly true, for example, if detailed case attributes are required that have

had little relevance for court management. In those instances, more imaginative strategies will be necessary to derive national figures.

Several techniques are available and have been used successfully in the

past to make estimates when time and funds preclude a national survey of

court files. In some instances, individual states will have relevant data—

caseload, filings, staffing, expenditures—that can be used to estimate the

impact. For example, the Virginia judiciary has already conducted an analysis of its caseload of child support orders. When a quick estimate is

needed, it can provide a reliable estimate of the potential workload change

caused by a requirement to conduct a periodic review and modification of

such cases. Projecting the results in one or more states to a national figure

can be done with some degree of confidence, although one would hope to

project from more than a single state.

In other instances, inferences must be drawn from comparable experience. For example, the recent Immigration and Naturalization Reform Act

will require courts to revise their system for reporting convictions. The cost

and difficulty of this change can be estimated from other efforts to change

information systems in state courts.

Finally, there will be those instances in which no state, or set of states,

has data. Under these circumstances, a possible source could be informed

estimates drawn from those directly involved in state courts—state court

administrators, judges, and trial court administrators—through a telephone interview system, refined by use of a Delphi survey. In combination,

these techniques hold the promise of providing reasonable estimates of the

effect of a law.
Effects of Legislation on the Workload of the Courts

110

Conclusion

The probable success of this effort depends on one’s perspective. If we approach the issue of impact statements from a strict research perspective,

the prospects are very gloomy, indeed. Most federal legislation is missing

the administrative details necessary to make precise estimates of how an

act will be implemented. It can be argued that one must await the administrative regulations before there is enough precision to develop indicators of

impact.

The complexity of state judicial landscapes further confuses the analysis. Funding may come from state government in one state and from the

county in another. The jurisdictional definitions vary widely from one state

to the next. For example, in some states domestic issues are resolved in

specialized family courts; in others, they are resolved in the court of general jurisdiction or an even lower court.

Although the states have made progress in obtaining state-wide statistics, lack of uniformity and incomplete data are still the order of the day.

Many issues of critical importance at the national level (e.g., the number of

domestic cases involving custody issues) are not data elements for court

managers.

Any one of these issues is enough to give a responsible social scientist

pause. In combination, they are the stuff of which researchers’ nightmares

are made. But social scientists’ research criteria are not the only values to

be maximized. As has been suggested earlier, the value of judicial impact

statements resides as much in their ability to conceptualize the relationship

between federal legislation and state courts as in the accuracy of their projection of cost or workload figures. Predictions of judicial overload may

give members of Congress pause, but they are not going to be persuasive if

an elected official is confronted with a popular issue. State judicial officials

must be able to plan for the impact of these policies, regardless of their

wisdom as public policy.

Given the necessity of estimating the effect of federal legislation on state

courts, despite the difficulty of the analytical task, state judicial impact

statements may be more of an art form than a research endeavor. But it is

an art form informed by systematic analysis of empirical data and, as such,

can be a major contribution to informed public policy at the federal and

state levels of government.
111

Status of Judicial Impact Notes in

Washington State

by Janet McLane

Director, Judicial Services

Washington State Office of the Administrator for the Courts

Background

The use of judicial impact notes in Washington State was prescribed by the

1984 Court Improvement Act. Since that time, judicial impact notes have

been used in a limited way to assess the impact of proposed legislation on

the operational procedures of the courts. Although judicial impact notes,

when prepared on selective bills, can be an effective tool in the relationship

between the legislative and judicial branches, their use in Washington during recent years has been restricted by some of the following dynamics and

developments.

Lack of Quantitative Tools

Although a wide range of caseload data is collected by the Office of the

Administrator for the Courts (OAC), it is often not complete or precise

enough to use in forecasting future impact of proposed legislation.

Typically, the time frame available for production of a judicial impact note

is quite short if the note is to be responsive to legislative action. This time

constraint limits the capability of programmers to analyze existing data

and produce special reports to see if, among the many pieces of information the courts report, there are data that will shed some light on the problem at hand.

In Washington, the weighted caseload methodology has proven to be

the most successful quantitative tool for predicting the impact of a bill on

judicial resources. However, its effective use is limited to those bills in

which the number of new proceedings or hearings can be accurately predicted. For instance, to estimate the additional judges needed to hold

prison release hearings for certain felons, a judicial impact note can effectively use the weighted caseload indicator. We know the exact number of

felons who will eventually appear before the trial court (they are those

felons sentenced prior to Washington’s sentencing reform act), and we can
Effects of Legislation on the Workload of the Courts

112

predict the length of each hearing (based on the length of such hearings

currently conducted by a parole board).

A bill that creates a new cause of action for which there is little historical experience in terms of judicial time, however, will not likely benefit

from a weighted caseload application. In this instance, we cannot anticipate the number or duration of new proceedings the bill may create.

When certain assumptions can be made about the bill to be analyzed,

the weighted caseload methodology offers a reliable tool for predicting judicial resource impact. But when the bill introduces a unique new cause of

action or procedural oddity, as is often the case, weighted caseload

methodology is not as useful for predicting impact. Since the weighted

caseload methodology is a tool for estimating judicial resource needs, it is

not at all useful for projecting the impact of bills on nonjudicial aspects of

court operations.

Fiscal Impact Notes

The Washington state legislature has rigorously required the use of fiscal

impact statements on any bill expected to affect revenue or expenditures.

Although designed to record the dollar impact of legislation, a supplemental narrative of the bill’s overall impact is allowed. Fiscal notes, because

they are systematically reviewed by legislative committees and are a familiar source of information for committee staff, have become the most common way to report both the quantitative (when it can be assessed) and the

qualitative impact of bills on the courts.

As an example, during a recent legislative session a fiscal note was prepared on a bill that imposed a dedicated assessment on convictions, guilty

pleas, or deferred prosecutions resulting from driving while intoxicated

(DWI) charges. The OAC used the fiscal note process not only to predict

the revenue generated from the new fee (an amount less than the recipient

agency projected), but also to educate legislators about the ways judicial

sentencing discretion is exercised in the types of cases affected by the bill.

The fiscal note was used by the legislative committee in its deliberations on

the bill, and, ultimately, the proposal was amended to reflect a more informed approach to a funding issue. In this instance, the fiscal note process

was used to report on the revenue implications of the bill and also to correct a flawed assumption about judicial sentencing practices.
Status of Judicial Impact Notes in Washington State

113

Increased Legislative Activity Among Judges

Washington judges have historically been reluctant to participate actively

in the legislative process on bills other than the few that clearly encroach

on the administration of the courts. With regard to such matters, judges

have usually expressed their concerns through correspondence with legislators, rarely appearing in person before legislative committees. This trend is

changing, however, largely because of the changing character of both the

bench and the legislature.

Washington judges are increasingly recognizing the importance of an

open line of communication with members of the legislature. In recent

years, courts have been bombarded with legislation that has had a

significant impact on the courts. Determinant sentencing, tort reform, family law revisions, and numerous new causes of action have prompted

judges to analyze legislation more deliberately and inform legislators of the

courts’ perspective.

Another dynamic which, in fact, has forced judges to play a more active

role in the legislative process is the downturn of Washington’s economy

and the impact of diminished resources on the judicial system. Washington

courts face the potential of the same devastating reductions experienced by

state court systems on the east coast and in neighboring California. Judges

recognize that they must be willing to educate state and local legislators

about the role of the courts and the level of resources necessary for the

court system to perform its constitutional duty. The reality of legislative

mandates and new causes of action that increase the courts’ workload at a

time of scarce resources has caused judges to reassess the role they should

play with the legislature.

To a certain degree, the willingness of judges to analyze bills and appear in person before legislative committees has diminished the emphasis

on judicial impact notes. When possible, the OAC helps judges prepare for

their presentations with statistical or historical data that might otherwise

be offered to the legislature in a judicial impact note. When this information is not available, judges often provide a retrospective view of the impact that comparable legislation has had on the courts. For example, during each of the past eight sessions, the Washington legislature has

significantly amended the state’s DWI statutes. Again this year, there are

numerous and conflicting proposals being considered. Although it is

difficult to predict the impact of the potential combinations of bills that

may pass, judges have presented caseload data about the impact of previ-
Effects of Legislation on the Workload of the Courts

114

ous legislation and offered persuasive testimony in support of allowing the

law in this area to settle before amending it further.

Inexperienced Legislature

Increased willingness of judges to interact with the legislative process

comes at a time when many of the “old guard” legislators are leaving

office and being replaced with new, often young legislators, the majority of

whom have little or no experience with the judicial system. (Only 10 of

Washington’s 150 legislators are attorneys.) These legislators are enthusiastic and many, displaying a pattern not unlike that at the national level,

clearly have a commitment to change “business as usual.” Their enthusiasm, coupled with little or no exposure to the courts, resulted in a certain

amount of unpredictable and perplexing legislation during the 1993 session. In anticipation of this, Washington judges participated in a series of

informal meetings with legislators, prior to the session, to explain the role

and constraints of the courts and to establish their accessibility to legislators.

Governmental Affairs Officer

To give the judiciary a full-time presence in the legislative process and to

continue building a structure for communication between the two

branches, the OAC has created a governmental affairs position. This position will develop a range of dialogue opportunities for judges, including a

more systematic use of judicial impact notes.

Future Role of Judicial Impact Statements in Washington

Although there is an unquestionable need for tools to quantify the impact

of legislation on courts, judicial impact notes should not be disregarded for

their less scientific purpose of generally educating legislators about the basic operation of courts. Washington legislators, with a few notable exceptions, have little understanding of the jurisdictional distinctions between

the levels of Washington courts; they often fail to recognize the complex

interdependencies among the key components of the criminal justice system; and they do not understand the significance of judicial independence.

Most legislators simply do not know how courts work, and, to the extent

judicial impact notes, even without precise quantitative measures, can play

an informative role, they should be used for this purpose.
Status of Judicial Impact Notes in Washington State

115

Washington’s judiciary has not produced a large number of judicial impact notes in recent years for a variety of environmental reasons. However,

as judges and court managers increasingly look for appropriate ways to

comment on legislation, the note process will be revitalized. And, as simulation modeling and other tools are developed, the potential of the judicial

impact note to inform the legislative process will become much greater.

Our system’s long overdue achievement of producing pending caseload reports will allow us to investigate more precisely the characteristics of cases

that take the longest time to resolve, result in the most warrants, or are

most suitable for alternative dispute resolution methods. Tools like these,

and the staff resources to analyze the data, may yet give the judiciary the

ability to describe and quantify the complex work of the courts.

117

Observations on Impact Models for the

Federal Courts

by William Jenkins, Jr.295

Assistant Director, Administration of Justice Issues

U.S. General Accounting Office

Impact analysis is neither new nor rare in Washington and takes a variety

of forms. The Congressional Budget Office, created as part of the

Congressional Budget Act of 1974, is required to estimate the budgetary

impact of legislative proposals. The Office of Management and Budget

(OMB) assesses the impact of agency budgetary proposals, including proposals to privatize certain programs, on the effectiveness and costs of program delivery. The recently abolished Competitiveness Council approved,

altered, or killed proposed regulations based on an assessment of their anticipated impact on the private sector. Legions of interest groups and lobbyists routinely provide Congress with assessments of the impact of various legislative proposals on the interests and fortunes of their members

and clients. The debate over health care reform is replete with conflicting

analyses about the likely impact of various options under consideration,

such as managed care, cost or price controls for physicians and hospitals,

and a greater focus on wellness programs and preventive care.

An increasing portion of the General Accounting Office’s (GAO) congressional request work focuses on the potential (prospective) impact of

various programmatic options, such as expanding prison boot camps or a

proposed restructuring of Veterans Administration health care services.

This is a marked change from the generally retrospective analysis that has,

until recently, characterized almost all of the GAO’s work.

These two types of impact analyses—retrospective and prospective—are

hardly mutually exclusive. A useful, realistic estimate of what may happen

in the future must generally be grounded in a firm understanding of what

has happened in the past and why. For example, we can develop a better

estimate of the impact on the federal courts of doubling the number of

firearms cases if we understand what impact the recent growth in those

cases has had already on the courts and their operations—including judges,

clerks’ offices, defender services, jury fees, and so forth. We would, of

course, also need some means of estimating whether the experience to date

with firearms cases is likely to grow linearly—more of the same—or
Effects of Legislation on the Workload of the Courts

118

whether something is likely to occur that will alter prior trends and lead to

a somewhat different result. For example, is the percentage of firearms

cases going to trial likely to remain constant? If so, why? If not, why not?

Thus, the most reliable and accurate estimates of the future impact a

particular policy (legislative or administrative) may have are likely to flow

from (1) a firm understanding of what has happened in the past and why;

(2) a careful assessment of how the current proposal is similar to and different from prior legislation or policies whose actual impact is known; and

(3) how those similarities and differences—even the sheer volume of

cases—affect the usefulness of prior experience as a guide to the impact

this particular proposal may have.

While legislators, the bar, and the courts themselves are generally the

intended audiences of most judicial impact analyses, the appropriate audience for any particular impact analysis very much depends on its objectives—what it is intended to accomplish. Certainly, litigants seeking access

to the courts are interested in jurisdictional issues and the resources available to the courts—how long it takes to get a hearing or trial, for example.

This paper focuses briefly on four issues in assessing legislative impact

on the courts: (1) the types of impact that should be considered; (2) the

methods that can or should be used to assess judicial impact; (3) the data

required for assessment of judicial impact, including some discussion of

available versus ideal data; and (4) the problems in verifying judicial impact statements.

Since my experience is principally with operational impact analysis—

the impact on court workload—my perspective tends to be quite “nuts and

bolts.”

The Types of Impact To Be Considered

Legislative impact on the judiciary can be considered along a continuum.

Perhaps the most narrow—though hardly simple—is assessing whether the

legislation is likely to increase, decrease, or have no effect on the number

of cases flowing into the courts. Beyond raw case filings are the impacts

that different types of cases—a change in the composition of the case

mix—may have on case processing, such as discovery, plea bargains, and

trials. For example, are there more trials in cases where the charged offense

carries a mandatory minimum sentence? Associated with such case processing impacts are particular costs in time, money, staff, and so forth that
Observations on Impact Models for the Federal Courts

119

may or may not be considered in any particular analysis of changes in case

processing.

Perhaps at the broadest level are such impacts as a weakening or

strengthening of the public’s perception of the courts as fair, accessible forums in which to seek redress for disputes. A statute may, for example, deprive some categories of litigants access to the courts, provide what is perceived to be special access, or provide such unfettered judicial discretion

that the applicable law seems to depend principally on the ruling judge(s).

It may take a number of years, plus several widely publicized (though not

necessarily representative) cases, for the public perception to crystallize

sufficiently to foster a legislative reaction. One important impetus for federal sentencing reform in 1984 was the public’s perception that, at least for

some offenses, the sentencing judge was a better predictor of incarceration

than the defendant and the crime. The federal sentencing guidelines have

had two clear impacts on the courts: markedly reduced sentencing discretion for judges and an increase in the number of sentences appealed. Other

impacts, such as whether the guidelines have actually reduced sentencing

disparity, are still being debated.296

Case filings, processing flows, and costs are generally appropriate—indeed necessary—topics for much of the analyses of the impact of actual

and potential legislation on the courts. But such analyses are not quite as

narrow as they may first appear. Estimating case filings alone requires an

understanding of why specific types of cases are filed, and, if the litigants

have a choice of federal or state courts, why they may choose one forum

over the other. The flow of cases into the courts is dependent on the

discretion exercised by a variety of players—civil litigants who may choose

arbitration over litigation, investigative agencies that often can choose to

refer cases to federal or state/local authorities, prosecutors who do not

prosecute every case referred to them, judges who may throw certain cases

out on procedural and other grounds, and so forth.

For example, most types of drug offenses, and many weapons offenses,

are violations of both state and federal statutes. The U.S. attorney has

considerable discretion in choosing which cases are brought to the federal

courts, regardless of whether those cases are referred by federal or state authorities. Investigative agencies simply do not refer some cases to the U.S.

attorney for prosecution if they know that the quantity of drugs or the

dollar amount of the fraud involved falls below the levels at which the U.S.

attorney will consider the case. Thus, the Drug Enforcement

Administration (DEA) may refer some drug cases directly to state and local
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prosecutors because it knows the local U.S. attorney’s “declination policy”

is to decline cases below a certain threshold of drugs seized. For example,

one U.S. attorney, until recently, would refuse any cocaine case in which

less than five kilos of cocaine was seized. This was ten times the amount

that would trigger a prosecution in some other districts.

The courts themselves can, to some extent, affect the impact of any

particular change in case mix or total workload. Judges are not without

influence on the nature of litigation in their courts. While U.S. attorneys,

for example, have considerable discretion over the number and type of

criminal cases they bring in federal courts, they are not oblivious to the

clues they receive from judges, including judicial displeasure with certain

types of cases the judges believe are more appropriately handled at the

state level.

Moreover, local rules are not, or at least should not be, sacrosanct.

Indeed, the Civil Justice Reform Act of 1990 requires each U.S. district

court to review the causes of delay and expense of civil litigation in their

districts and to prepare a Civil Justice Expense and Delay Reduction Plan

that includes steps for reducing both. The Act requires each court to do the

following: conduct a thorough assessment of the court’s civil and criminal

docket; identify the principle causes of cost and delay in the district; examine the impact of new legislation on the court’s ability to process civil cases

efficiently; recommend measures, rules, and programs for decreasing any

cost and delay; and consider various litigation management techniques

outlined in the Act, such as mediation and arbitration.

The district plans are developed with the assistance of a Civil Justice

Advisory Group, which is to be “balanced and include attorneys and other

persons who are representative of major categories of litigants” in the

court. The various district plans developed under this statute should be

useful in understanding how the judges, local bar, U.S. attorney, local federal defender (where such offices exist), and major categories of litigants

view the work of the courts and the data that should be considered in

evaluating the impact of legislative action on the courts.

Impact Models and Their Uses

Impact models can be useful when quick response to a variety of “what if”

scenarios is needed and when one is trying to model more than one step in

the litigation process. Such models can be designed to provide highly aggregated or very detailed impact estimates. All models are abstract repre-
Observations on Impact Models for the Federal Courts

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sentations of reality. For operational and budgetary reasons, most models

attempt to capture the most important aspects of that reality. What is most

important is, of course, a matter of judgment based on the available empirical knowledge of how the process one is trying to model may work.

Because our knowledge is imperfect, models always include important assumptions about the process(es) they represent.

Where little is known, the basic constructs of the model may be based

on the advice of experts within the system, such as judges, litigants, and

members of Congress. The practical, hands-on experience that the members of expert panels have is valuable and can help to identify a range of

potential impacts legislation may have or has had, key decision points to

include, and potential sources of data. While such panels can be a useful

part of empirical analysis, including model building, they are no substitute

for hard data, such as case filings and operations and cost data. It has been

my experience that the analysis of such data sometimes leads to very different conclusions than what the experts say has happened or is likely to

happen.

As noted earlier, one characteristic of the judicial process complicates

estimates of case flows through the process: key participants—private litigants, prosecutors, judges, and others—have considerable discretion in the

exercise of their responsibilities. The use of that discretion—which cases to

file or the decision to go to trial rather than settle or plea bargain—affects

workload and costs at every step of the process. Models can be useful

means of estimating the impact of change(s) in the use of that discretion by

one or more participants. But, as discussed later, the more comprehensive

(another way of saying ambitious) the model, the more data required and,

consequently, the more problems one is likely to have developing the

model. The more imperfect the data the more assumptions the model must

include to produce its estimates.

A Basic Typology of Criminal Justice Models

William Rhodes has offered a useful typology of criminal justice impact

models that is also useful as a basis for discussing operational impact issues.297 Rhodes groups these models into three basic types, roughly in

increasing order of complexity and detail:

• Statistical models use data to measure past trends (patterns) and

project those trends into the future. Most statistical models assume that the trends revealed by the statistical analysis will continue into the future. Using multivariate analysis, it is possible to
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control for changes in the model’s specific variables to determine

how such changes may affect the model’s projections. Of course,

such analysis is limited to the variables in the model. For example,

a model based on changes in budgetary resources, such as staff

and dollars, could not control for changes in demographics, such

as race, age, and gender.

• Disaggregated simulation models classify units of analysis into

groups (e.g., burglary defendants or cases) and simulate criminal

justice operations by modeling flows between important processing steps, such as arrest, arraignment, and plea/trial verdict. These

models can be simple or complex, depending on the number of

steps in the model and the number of possible results in each step.

For example, the model may or may not include the decision to

grant bail. If this step is included, the choices could be simple (yes,

no) or detailed (yes could include subcategories on the type of bail

granted, such as surety or personal recognizance). Examples of

such models are JUSSIM, IMPACT, and the Community

Corrections Planning Simulation. Somewhat different versions of

JUSSIM are used in several local jurisdictions to simulate resource

demands based on specific case flows.298 The IMPACT model,

developed by the Criminal Justice Statistics Association, is most

widely used to project correction stage populations—jail, prison,

probation, and/or parole.

• Microsimulation models process units of analysis, such as defendants or cases, one at a time rather than in groups. These models

have most frequently focused on the correction stage, mostly

prison populations, and often require very detailed data about the

crime and/or defendant (such as prior criminal history and

whether a gun was used in the commission of the offense).

Examples include the National Council for Crime and

Delinquency (NCCD) model, Justice Impact Analysis, JUSTICE,

and the Federal Sentencing Simulation that is used to estimate the

prison impact of the federal sentencing guidelines. Through fiscal

year 95, a version of that model was used by the Bureau of Prisons

to estimate capacity needs.

Models may, of course, combine attributes of more than one of these

types. They may focus on the entire criminal justice process, from arrest

through release from post-prison supervision, or only a portion of the process, most frequently corrections. Models may attempt to estimate flows
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and/or stocks at one or more stages of the process. Flows are the number

of cases or defendants who move from one step to the next (such as arrest

to arraignment) during a particular period of time (such as a month or

fiscal year). Stocks are the inventory of one or more steps in the process at

a point in time (such as the number of defendants awaiting sentencing at

the end of the month or year). Estimating stocks generally requires estimates of (1) how many cases or defendants there are at the beginning of

the period, (2) how many enter the stage during the period, and (3) how

many exit during the period.

Models also vary in the data they use. Some microsimulation prison

projection models require exceptionally detailed data on the characteristics

of the crime committed (such as the amount of drugs involved) and the defendant (such as age, education, and prior criminal history). The level of

detail required for model development is largely dependent on the objectives for which the model is developed and how difficult and expensive it is

to get the necessary data to fulfill those objectives.

In this age of budgetary constraints, model development has the drawback of generally being both time consuming and rather costly—data are

not a free good. If they are to remain useful, given the evolving nature of

the case mix, court operations, and so forth, models must be regularly updated and retested for validity. With all the other demands for resources, it

can be hard to justify the expense of model development, unless a model’s

potential usefulness to policy makers can be demonstrated.

Some Basic Data Lessons from One Model Building Effort

The 1988 Anti-Drug Abuse Act directed GAO to develop a model that

could be used to help “maintain balance in the Federal criminal justice

system.”299 The model’s basic purpose was to assist members of Congress

to assess the potential impact that increasing or decreasing budgets (staff

and dollars) for one or more parts of the system—such as the Federal

Bureau of Investigation and/or the U.S. attorneys—would have on the rest

of the system, such as the courts and prisons (see Figure 1). The provision

was placed in the Act by a senator who was a former governor and was

appalled by the paucity of data available to Congress for examining the

impact of its decisions on the federal criminal justice system as a whole. As

a governor from a state that had an offender-based tracking system, he had

much better data on his state’s criminal justice system.
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Figure 1

RESOURCES 

PROVIDED 

(INPUT) STAGE OF PROCESS

DEFENDANTS

ESTIMATED

(OUTPUT)

INVESTIGATION

PROSECUTION

ADJUDICATION

Referred to 

U.S. Attorneys

Pending 

Start-of-Year

Declined

Indicted

Pending 

End-of-Year

Pending 

Start-of-Year

Dismissed

Acquitted

Guilty

Pending 

End-of-Year

Probation

Prison and 

Probation

Prison

Staffing 

Budget

Staffing 

Budget

Staffing 

Budget

Exit

Exit

Exit

CORRECTION
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The model we developed combined features of both statistical and disaggregated simulation models. It was a statistical model in that it used regression analysis of fiscal years 1979–1989 resource and workload data to

develop most of its aggregate estimates—such as the total number of persons the U.S. attorneys indict in a given fiscal year. The model assumed

that the relationships represented by those regression equations would remain constant in the near term.

Ours was also a disaggregated simulation model in that it estimated the

total number of defendants300 who would move (flow) from the investigation, prosecution, and adjudication stages of the criminal justice process

during the fiscal year and enter the correction stage. The model broke

those totals into seven major crime types and estimated the flows using

branching ratios in the form of probabilities. For two stages of the process—prosecution and adjudication—it also estimated stocks in the form

of the total number of defendants pending at the end of the fiscal year in

each stage.

The model we developed was more satisficing than satisfying. However,

its development proved to be a valuable learning experience. We learned

much about the rather considerable constraints that existing federal data

place on anyone trying to develop useful models for policy making, especially models that cut across agencies or steps in the criminal justice process.301 The observations in this paper are based on that effort, as well as

other work we have undertaken to assess why the intended and anticipated

effects of legislation are, more often than not, different from the actual

effects of that legislation.

Selected Data Problems Encountered

Because the available data are so critical, it is worth discussing some of the

problems that existing data limitations place on the types of impact analyses possible. The only constant in impact analysis is that what we do know

or can say with any reasonable degree of assurance is generally dwarfed by

what we do not know. It is difficult enough, given available data, to assess

what has occurred, much less predict what is likely to occur as a result of a

particular policy proposal. The more comprehensive and detailed the impact analysis desired, the greater the data problems and the more qualified

one’s conclusions must be.

1. Data Are Too Aggregated for Many Types of Analyses. Generally,

available federal data are at once both too aggregated and too fragmented

for many types of analyses. Some of the major problems can be illustrated
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by using examples from our model-building efforts. The aggregation of

available data masks a lot of important differences and details. A number

of federal agencies, such as the U.S. Customs Service and the Bureau of

Alcohol, Tobacco, and Firearms, have both civil and criminal law enforcement responsibilities. Some of these agencies do not either justify their

budgets or track expenditures separately for civil and criminal enforcement

activities. Thus, obtaining data on criminal enforcement staff and costs

may require relying on fairly rough estimates.

Even where data on criminal enforcement activities and costs are maintained separately (as the U.S. attorneys do), the agency may have limited

staff and cost data by major type of case. But changes in the mix of cases

can have profound resource implications, as both the U.S. attorneys and

the courts, for example, acknowledge in their budget requests to Congress.

Both plausibly argue that prosecuting and adjudicating drug cases is more

costly and time consuming than most other types of criminal cases.

However, neither has much consistent, reliable data on the impact such

cases have on their workload and resources. The same limitations generally

apply for data from the major federal investigative agencies, such as the

Federal Bureau of Investigation (FBI) and the DEA.

2. Data Are Also Often Fragmented, Making Comparisons Difficult.

Data are also fragmented in a variety of ways. For example, available data

are generally not comparable among different agencies with similar responsibilities. The DEA and FBI do not keep comparable data on their

drug enforcement efforts, nor do the U.S. attorneys and the federal courts

keep comparable data on criminal cases. Even the criminal case categories

vary. The U.S. attorneys have about sixty criminal case codes, while the

courts have about twice as many. It is possible to make some reasonable

linkage using the title and section of the U.S. Code associated with each

crime code. We used a program developed by Abt Associates for this purpose. Finally, the court data include misdemeanor traffic cases—around

8,000 annually—that are not included in the U.S. attorney database because the U.S. attorneys do not prosecute those cases.302

Moreover, through 1992, the court database was kept on a July 1 to

June 30 year, while all other federal data, including that of the U.S. attorneys, were maintained on fiscal years (October 1 to September 30). While

it was possible to use date field(s) to convert the court database to federal

fiscal years, there were still problems in comparing counts between the two

databases. At the end of the fiscal year, the executive office of the U.S. attorneys made a concerted effort to clean up stale or missing data, espe-
Observations on Impact Models for the Federal Courts

127

cially on cases that had been closed during the year, and to update the

database. Thus, there was usually a surge of data entry in the U.S. attorney

database at the end of the fiscal year, a surge that would not show up in

the U.S. courts database, which was finalized each year on a different

schedule.

To track the disposition of referrals from investigation agency through

final disposition by the courts, as we tried to do, is not easy. The U.S. attorneys have an investigative agency identifier in their database, permitting

one to identify the agency that referred the case for prosecution. The U.S.

courts’ master criminal file has no such identifier, because the courts have

no need for one.

However, one cannot necessarily conclude from the referring agency

code in the U.S. attorney database that this was the agency that actually

incurred the expense of the investigation. We found, for example, that the

Immigration and Naturalization Service apprehended a number of drug

“mules” (couriers) at the border but then turned them over to the DEA or

Customs. The DEA or Customs was then credited in the U.S. attorney

database with the referrals. If one wished to track agency referrals through

the criminal justice system—whether the defendant was actually indicted

and found guilty—one had to rely on the U.S. attorney database because of

the absence of an agency identifier in the court database.

To obtain sentencing data required accessing a separate database maintained by the courts.303 At this point, virtually all linkages with the prior

stages of the process were lost. Thus, in our model, we estimated sentences

by type of crime only. We could not link those sentences to sets of cases

initiated by particular investigative agencies.

Finally, data are often not comparable within the same agency for the

same activity over time. Program categories are redefined and more often

than not crosswalks between the old and new categories are unavailable.

Constructing such crosswalks is time-consuming at best and frequently virtually impossible. The U.S. Marshals Service, for example, redefined its

program categories several years ago, making it extremely difficult to compare workload and costs before and after that transition. Or the same activity may have been funded differently over time, affecting the consistency

of the data reported. The Organized Crime Drug Enforcement Task Forces

(OCDETF), for example, have been funded by appropriating money directly to the participating agencies for their OCDETF activities and also by

appropriating money to the executive office of the task forces, which

would then reimburse agencies for their costs.
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Thus, one encounters a number of problems. Data—cost and/or workload—are not necessarily available on the actual activity that may be affected by a change in policy. The data, if available, may not be comparable

across time, making trend analysis difficult. The data may not be comparable among individual components within an agency—for example,

among district courts, U.S. attorneys offices, or DEA field offices—that

may be important for the analysis. And if the analysis requires data from

more than one agency, it is highly unlikely that the available data are comparable, even though the data are supposedly counting the same thing,

such as dispositions.

Given such problems, the data either must be adjusted, assuming there

is some reasonable, defensible way of doing it—such as using the title and

section to match criminal codes in the U.S. attorneys and U.S. courts criminal databases—or critical assumptions must be made about the data. For

example, one may need to assume that the referring agency listed in the

U.S. attorney database is indeed the agency that expended the resources on

investigating the cases for which it is credited.

The Data Needed Reflect the Scope of the Analysis

Though a truism, it is worth restating that the data needed for an impact

analysis are dependent on the scope of the analysis. The proper scope is in

turn dependent on (1) the audience to whom it is addressed, (2) the purposes for which it is done, and (3) how quickly the results are needed.

Congress and others can always pose far more questions than it is possible

to answer quickly or with reasonable certainty.

Audiences for Impact Analysis

Generally, the immediate audience for most federal judicial impact analyses is Congress, although members of the bar and other groups, including

those in academia, have an interest as well. Certainly, we in the GAO are

interested in such analyses. But each audience has somewhat different interests and needs. Academics generally have an interest in building coherent theories of behavior. Members of the bar are generally interested in the

impact changes may have on their clients, access to the courts, and, consequently, judicial remedies. Judges have an interest in the impact that legislative changes may have on their workload and the resources available to

process it. The GAO’s interest is quite eclectic and practical, focusing primarily on operational impact issues.
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To some extent, the appropriate audience for a judicial impact statement depends on what one wishes to accomplish with it—both immediately and in the longer term. Impact analyses are also useful for a variety

of audiences, internal and external to the courts. Internally, they are useful

to judges, the Federal Judicial Center and various offices within the

Administrative Office of the U.S. Courts. Impact statements, for example,

can help to identify gaps in existing data and areas that may need strengthening to better manage the courts. Externally, they are generally useful to a

whole variety of groups with interest in the jurisdiction of and access to

the federal courts.

However, for most federal impact analyses, Congress is the immediate

customer and user, and the goal of the analysis is most frequently to alert

Congress to the workload and resource implications of legislation under

consideration—most commonly nonbudgetary legislation, such as expanding the number of offenses that carry mandatory minimum sentences.

Congress tends to be interested in the operational impact of proposed

legislation. What is the likely additional or decremental workload resulting

from the legislation or policy change? If additional workload is likely, can

the courts handle the increase within existing resources? If not, why not,

and what additional resources would be required?

Less frequently, Congress is interested in the probable effect of the

change on state courts. Members who are former governors or mayors are

the most likely to have such concerns. Congress may also be interested in

the substantive effect of a proposed change. One example is the debate

concerning the impact on death penalty defendants of more limited access

to federal courts via habeas corpus proceedings.

The purpose and scope of the analysis may be broad or narrow depending on who will use the analysis and why they want it. The analysis is different, for example, if one is looking at budgetary decisions rather than the

impact of various alternative dispute procedures on litigants.

Suppose the appropriation committee asked about the resource impact

of eliminating diversity jurisdiction in the federal courts. In other words,

would this reduce the need for resources? The committee is most likely to

want the answer organized by appropriation account and, perhaps, object

class (such as personnel or travel) because these are the categories it uses to

appropriate funds. This may itself affect the way one goes about the analysis. It certainly affects the data one is likely to want and use.

An authorization committee, such as the Judiciary Committee, may ask

a related but somewhat different type of operational question: What im-
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130

pact would eliminating diversity jurisdiction have on civil case backlogs,

especially civil cases awaiting trials, in the federal courts? Faced with questions from local mayors and judges, the authorization committee might

also want to know how the elimination of such jurisdiction is likely to affect state courts as litigants formerly suing in federal courts turn to the

state courts for redress. To answer this question, one would need data on

workload but not necessarily costs. However, to answer the appropriation

committee’s question, one would need cost as well as workload data.

Timing of the Analysis: How Quickly Is It Needed?

The authorization and appropriation committees may also have very different deadlines for a response. The appropriation committee, faced with

mark-up on the appropriation bill, would need the analysis quickly, while

the authorization committee may have posed the question as part of its

preparation for oversight hearings several months later.

The scope and type of analysis undertaken are very much dependent on

timing—when is the answer needed? Given the legislative calendar, “quick

and dirty” is often all that is possible to deliver the information to decision

makers in enough time so it can be used to affect the outcome of the legislative process.

When a quick response is needed, one must generally make do with

whatever data is readily available. With more time, it may be possible to

create the data needed for analysis by merging and matching databases or

developing original data through questionnaires, case tracking, or creating

special reporting mechanisms—a process used to develop new district

court case weights.

Some Characteristics of Ideal Data for Impact Analyses

The characteristics of ideal data for impact analysis will, of course, vary

with the type of analysis undertaken. No database could include all the

variables that one might need for impact analyses. In general, however,

there are certain characteristics that the “ideal” data should have. The data

should:

• be at the lowest level of analysis that makes analytical sense

(generally by individual case or defendant);

• link workload (what types and how many of each), time (how

long), and cost (how much),304 in a consistent way;
Observations on Impact Models for the Federal Courts

131

• be organized so that it can be readily aggregated in a variety of

ways for analysis (such as groups of cases, program, appropriation

account, individual court); and

• be comprehensive.

The characteristics described here assume that the cost to compile and

maintain the data is not a consideration. In the real world, of course, it is

an important constraint. The more detailed the data, the more ways they

can be aggregated, disaggregated, and analyzed, and thus, the greater the

cost to create and maintain the data.

Cases, whether criminal or civil, vary considerably in their complexity

and cost and the time required to process them. Analytically, the data

needed for judicial impact analysis are not that dissimilar from the data

needed for analyzing medical care cost and outcomes (the quality of care

delivered for any specific cost). Once a patient makes contact with the

medical care system—whether through a doctor’s appointment or arrival

in an emergency room by ambulance—a variety of data are kept on the

patient. The workload data include the various tests and procedures used

to diagnose and treat the patient, the identity of the doctors, nurses, and

others who perform the tests and procedures, the costs305 (materials,

equipment, personnel, etc.), and ultimate outcome—death and complete

cure being the two polar extremes.

Clearly, it does not cost the same to treat a patient for acute appendicitis as it does to treat one for arterial blockage, even though surgery

may be required in both cases. Nor does it necessarily cost the same to

treat two heart patients who have heart bypass surgery. One may have

complications, while the other may not.

Similarly, an ideal judicial process database would have data on a litigant or case from the time first contact is made with the legal system—the

plaintiff who seeks a lawyer for a tort or the person who becomes the subject of an investigative agency inquiry, whether civil or criminal. It would

include data, by case or offender, on the procedures (discovery, pretrial

settlement conferences, plea negotiations), used in processing the case, who

participated in these procedures and for how many hours, the costs, as

well as the results of the case (defendant was found guilty but the conviction was voided on appeal or civil case settled before trial).

Analytical Potential of Ideal Data

A database that captured criminal case data by offender and civil data by

case type (including number and identity of litigants in the case) would
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132

capture data at a very useful level of analytical detail. For criminal offenders, the system would capture all workload and cost data from arrest

(investigative costs would be even better) through the final day of supervision on probation or supervised release. For civil cases, it would capture

similar data from date of filing through final appeal.306 This would permit

a wide range of analyses, including, for example:

• the impact of the use of discretion on the flow of different types of

defendants and cases through the system, such as the charges included in the initial and all superseding indictments or the granting of bail in criminal cases; or, for civil cases, the scope of discovery and use of pretrial settlement conferences;

• the time lapsed from one step of the process to the next—such as

filing to trial, trial to sentence or judgment order, and the costs

associated with those times;

• analysis of offense, race, gender, and age effects on criminal case

outcomes;

• comparisons between areas of the country (individual district

courts or U.S. attorneys offices); and

• costs for different types of defendants or litigants and offenses or

case types.

Such data could be used to develop fairly detailed models of the process

that would permit a wide range of “what if” analyses, including the costs

of moving different types of offenders or cases from one step in the process

to another; the potential cost savings of reducing the time cases are in process; or the costs of alternative sentences, such as various mixes of probation, home confinement, community confinement, and prison.

While some state and local jurisdictions have offender-based systems of

varying detail and usefulness, the federal system provides very little capacity to trace specific offenders or groups of offenders through the system,

much less to determine the costs of processing those offenders through the

system from arrest through final release from the supervision of the federal

criminal justice system (whether it be the Justice Department’s Bureau of

Prisons or the judiciary’s Probation Service).

The data on civil litigation are even more diffuse and difficult to gather

and organize. In part, this is because there are many more parties involved

in civil litigation, and the government generally plays a less central role.

One result is that estimating civil case filings, particularly by specific district or case type, is more complex than it is for criminal cases.
Observations on Impact Models for the Federal Courts

133

Validating Impact Analyses

It is generally the case that data systems are designed more to capture the

data one needs today than the data one may need in the future, if for no

other reason than it is usually easier to justify and obtain needed funds

based on demonstrated actual need, rather than potential future need.

When budgets and workload are growing incrementally, there may be little

need for information systems that facilitate a variety of impact analyses.

However, when changes are frequent (the biennial crime bills of the 1980s)

and/or not so incremental (implementation of the federal sentencing guidelines), the limitations of existing data are more apparent.

Validating impact analyses—in particular, the operational impacts that

have been the focus of this paper—is in no small part a data and cost issue.

Using available data, one might predict a rise of 6,000 cases at a cost of

$20 million to the courts because of a particular legislative action. If no

mechanism exists for tracking the filing of such cases and the cost to process them, it will be difficult to validate the estimate. Such can be the case

today because the courts’ regular systems have limited capability to track

and cost specific types of cases or actions. The workload data available are

generally more detailed than the cost data, which are geared more to the

appropriations process and traditional object class accounting

classifications (personnel, travel, etc.).

For judges and staff trying to keep up with a growing workload, it can

be frustrating to be asked to maintain special, ad hoc data systems designed to validate and analyze different anticipated impacts arising from

several major legislative actions. However, if one expects a particular legislative action or set of actions (such as a number of provisions in a major

crime bill) to have a major impact on court operations and costs, it may

very well be worth the time, trouble, and cost to establish systems that

track the impact of that legislation. Without such data, it may be difficult

to support substantial budgetary increases based on that impact when it

occurs.

In its budget justifications and other documentation provided to

Congress, the judiciary emphasizes that its workload is largely dependent

on the actions of others, whether it be new jurisdiction conferred by

Congress, new criminal law enforcement policies, the incidence of a particular type of crime in a local jurisdiction, or simply the sudden onslaught

of a particular type of civil suit, such as asbestos claims. For any agency

that exercises such limited control over its workload, it seems especially
Effects of Legislation on the Workload of the Courts

134

important that there be a means of analyzing the impact(s) that may result

from changes in the actions of those who have the greatest control over

that workload.

Conclusions

Impact analyses are growing, in part because the demand for them is

growing. Yet our ability to provide accurate and reliable estimates of the

impact of legislation on workload, costs, and time is considerably limited

by the data available for such analyses. There are large gaps in our knowledge about what is currently occurring and why. We have limited data on

the actual operational impacts of the sentencing guidelines, for example,

much less the effect the guidelines may be having on sentencing disparity.

Consequently, it is extremely difficult to estimate the probable impact(s) of

any changes on the operation of the guidelines.

The broader the scope of the impact analysis, the more difficult the

problems the analyst faces, and the more assumptions that one must make.

Indeed, clearly explaining the assumptions on which an analysis is based is

key to understanding the limitations of any analysis. The model that the

GAO developed has some critically important assumptions and limitations

that are described in the report.

No database could ever include all the variables that one might need for

impact analyses. However, an extremely useful database, at least for operational impact analyses, would be one that included workload, time, and

cost data at the individual case or defendant level. Such data offer a variety

of data elements that could be aggregated in a number of ways for impact

analyses, as well as be used to validate those analyses. However, such data

would also be expensive to create and maintain.

There are, we are told, four basic stages of learning: unconsciously incompetent, consciously incompetent, consciously competent, and unconsciously competent. While in certain narrow areas of workload and costs,

impact analysis may have evolved to the stage of consciously competent,

we are in many ways still consciously incompetent. We are aware of the

many limitations and difficulties of conducting impact analyses that produce reliable, accurate impact estimates. Because it is unlikely that data

problems discussed in this paper will disappear any time soon, I, at least,

expect to remain at the consciously incompetent stage for the foreseeable

future.
135

Preliminary Findings: A Retrospective

Analysis of the Effect of Legislation on the

Workload of the U.S. Courts

by Frank Arnett and A. Fletcher Mangum

Planning and Technology Division

Federal Judicial Center

Introduction

In this report we present the preliminary findings of an exploratory retrospective analysis of the effect of federal legislation on the workload of the

U.S. courts. As far back as the 1980 National Academy of Sciences report,

and as recently as the 1992 publication of the Institute for Court

Management’s Guidebook for Legislative–Judicial Relations, judicial impact analysts have viewed the creation of a retrospective database on the

impact of legislative enactments as a critical step in moving their efforts

forward. Because all forecasts are simply probabilistic assessments of what

will happen in the future given what has happened in the past, the more

that is known about the impact that various types of legislation have had

on the courts in the past, the easier it is to forecast the impact that proposed legislation will have in the future.

The data employed in this analysis are derived from available filing data

(from the Administrative Office for the U.S. Courts) for both criminal and

civil district court cases. As will be demonstrated below, categorizing statutory cause-of-action information contained in these data and associating it

with relevant case-weight information may shed some light on the historical impact of some criminal and civil statutes on district court workload.

It is important to note from the outset, however, that this is an exploratory effort. Because of limitations in the currently available data and

operational problems encountered in mapping the precise relationship between statutes and court workload, the clarity of this light varies

significantly across various statutes. Because of this, it is not possible to assume that the picture of judicial impact developed in this report is either

complete or definitive. Instead, the purposes of our analysis are more modest: (1) to evaluate the usefulness and limitations of using currently available statutory cause-of-action data in combination with other available

filing data to enhance our understanding of judicial impact, and (2) to gain
Effects of Legislation on the Workload of the Courts

136

some perspective on how currently available data might be revised to enhance future efforts in judicial impact assessment.

Preliminaries

Filing Data

To properly interpret the potential usefulness and limits of the findings

presented in this report, it is important to have a basic understanding of

the data from which they are derived. The criminal case-filing data were

obtained from information submitted by the district courts to the

Administrative Office on the JS-2 and JS-3 Forms and then entered onto

computer tapes. Because of Speedy Trial Act requirements, these data are

available for criminal cases since 1977. The civil case-filing data originated

from data submitted to the AO on the JS-5 Form.307 For the current

purpose, which is to identify a case filing with a specific statutory cause of

action, these data are available only for a six-year period covering statistical year 1987 through 1992.308 The findings presented in this section for

both criminal and civil cases are based on this six-year period.

For each case filing, the AO data report an Offense Code (F-Code) for

criminal cases or a generic code for the general Nature of Suit (NOS-Code)

in civil cases. These codes are used to map case filings into general case

types, the aggregate statistics for which are then presented in the Annual

Report of the Director of the AO. In addition, the data also report, for

most criminal filings and many civil filings, the single most important

statutory provision on which the case is brought as listed by the filing attorney. This statutory cause of action is listed in the data as “cause.”309

The cause indicator provides the data employed in this study to map

criminal and civil filings into the specific legislative enactments under

which they were brought.

The principal advantage to using statutory cause of action, as opposed

to F-Code or NOS-Code, is that it allows us to connect a case more directly with the specific legislation under which it was brought. This provides a picture of how particular legislative enactments affect the workload

of the court. The clarity of this picture, however, varies significantly across

different titles and sections of the U.S. Code and depends, in part, on how

accurately the data are reported. In this regard, there are two important

points to bear in mind regarding the statutory cause of action data on

which the findings presented in this report are based.
Preliminary Findings: A Retrospective Analysis

137

First, “cause” is currently an optional field on the filing form. This

means that it is not always filled out, and even when it is filled out, the entry is not verified by the AO. With respect to criminal filings, this does not

appear to present much of a problem; the proportion of filings for which a

statutory cause of action is listed is generally quite high, almost 100%.

With respect to civil filings, however, the proportion of filings for which a

statutory cause of action is listed is much smaller, although it has improved over time. In SY 1987 this proportion was 22%; in SY 1988, 26%;

in SY 1989, 27%; in SY 1990, 32%; in SY 1991, 41%; and in SY 1992,

47%. To generalize the results we obtain from this subset of civil filings to

all civil filings, it is necessary to make the strong assumption that this subset is both accurate and representative of the whole.310

The second point to bear in mind regarding these data is that only one

statutory cause of action is listed. As a result, it is possible to attribute only

one statutory cause of action to each filing even when more than one exists. This is a particular drawback in assessing the impact of criminal

statutes, given that charges are often brought under more than one count.

A good example of the difficulties caused by this limitation can be found in

18 U.S.C. § 2. Although the data show that the frequency of filings listing

18 U.S.C. § 2 as cause is quite high, this is essentially a boilerplate charge

in every case involving two or more defendants and provides no information on the substantive charges of the case. Moreover, this implies that estimates of the judicial impact of those statutes providing the substantive

cause(s) of action under which these filings were brought are understated

by the data.

Another factor that affects the reliability of statutory cause-of-action

data in assessing judicial impact is how well cases brought under a given

statute correspond to some meaningful subcategory of judicial workload.

As a general rule, the more specific a given statutory cause of action is relative to the appropriate F-Code(s) or NOS-Code(s) for that statutory cause

of action, the more information we are able to gain from analyzing it. The

following examples demonstrate this point.

In 1989, the Seventh Circuit reviewed a suit brought under the Federal

Tort Claims Act by a state prisoner whose personal belongings, valued at

$50, had been damaged by guards.311 Codified at 28 U.S.C. §§ 2671–

2680, this Act covers a broad spectrum of cases for different plaintiffs, not

just prisoners, seeking to sue the U.S. government for damage to property.

The court’s subsequent opinion contained some discussion regarding the

magnitude of the workload imposed on the courts by prisoners’ small
Effects of Legislation on the Workload of the Courts

138

claims brought under the Act.312 In circumstances such as this, because the

statutory cause of action is very specific relative to the relevant NOS-Codes

for these case filings, it is possible to use statutory cause-of-action data to

develop a picture of the judicial impact imposed by a particular statute

that is simply not possible using either F-Code(s) or NOS-Code(s).313

For instance, the data show that in SY 1987, 170 suits were filed in U.S.

district court (accounting for 0.32% of the civil caseload) that listed 28

U.S.C. §§ 2671–2680 as cause. In SY 1988, 179 suits were filed

(accounting for 0.29% of the civil caseload) listing this cause of action; in

SY 1989, 174 (accounting for 0.28% of the civil caseload); in SY 1990,

202 (accounting for 0.28% of the civil caseload); in SY 1991, 391

(accounting for 0.45% of the civil caseload); and in SY 1992, 464

(accounting for 0.43% of the civil caseload). These data provide a clearer

picture of the impact of the Federal Tort Claims Act as a whole than

would be possible using NOS-Code data. Moreover, when these data are

cross-referenced with the relevant NOS-Codes for prisoner petitions (NOSCodes 510–550), a fairly precise accounting of the number of prisoner petitions that were brought under the Act is obtained. Here the data show

that no more than ten cases in any one year were brought under 28 U.S.C.

§§ 2671–2680 that were also classified according to NOS-Code as prisoner petitions. Although these data seem to suggest that the impact of

prisoners’ claims under the Federal Tort Claims Act is relatively insignificant, a final determination would require more complete analysis of

the pleadings of cases brought under the Act.

Statutory cause of action can be similarly revealing even in those circumstances where there is an apparent one-to-one correspondence between

a particular statute and a particular F-Code or NOS-Code. A good example of this is the relationship between cases brought under 20 U.S.C.

§ 1080 (Default of Student Under Federal Loan Insurance Program) and

the pertinent NOS-Code 152 (Recovery of Student Loan Defaults). As one

might expect, there is a close correspondence between this particular

statutory cause of action and NOS-Code. Of the 660 cases filed in U.S.

district court in SY 1992 that listed 20 U.S.C. § 1080 as cause, almost all

(96%) also listed NOS-Code 152.314 This relationship is not reciprocal,

however. In SY 1992, there were a total of 6,146 cases filed under NOSCode 152 (and also listed some statutory cause of action). Of these 6,146

filings, the majority (89%) did not list 20 U.S.C. § 1080 as cause.315

When one looks at the statutory causes of action listed in the cases filed

under NOS-Code 152 for SY 1992, two interesting findings emerge. First,
Preliminary Findings: A Retrospective Analysis

139

a large number of the filings (1,640) were brought under a different, but

closely related, statute, 20 U.S.C. § 1083 (Student Loan Information by

Eligible Lenders). What this shows is that even in those situations where

the appropriate NOS-Code or F-Code is somewhat narrowly defined,

statutory cause-of-action data can still be useful in illuminating the specific

legislative channels through which cases are brought into court. By using

these data to analyze trends in the relative judicial impact of individual

statutory provisions, we are able to gain some perspective on the factors

that give rise to this litigation and how those factors may be changing.

This point is demonstrated in the following graphs, where filings brought

under 20 U.S.C. § 1080 and 20 U.S.C. § 1083 are shown as a percentage

of all civil filings for SY 1987 through SY 1992.

As illustrated by these graphs, not only did cases brought under 20

U.S.C. § 1083 generally increase over the period as a proportion of the

district courts’ civil caseload, but perhaps more importantly, a sudden

jump in cases brought under this particular statute was responsible for the

equally sudden jump in student loan default cases that occurred in SY

1992. Investigation of the circumstances surrounding this sudden increase

in filings reveals that it is directly attributable to a pilot program in the

eastern district of Michigan where private law firms are being contracted

by the U.S. attorney to pursue these cases.316

The second interesting finding to emerge from an examination of the

statutory causes of action listed for cases filed under NOS-Code 152 in SY

1992 is that the bulk of these cases (3,692) were brought under the purely

jurisdictional statute 28 U.S.C. § 1345 (U.S. Plaintiff). What this demonstrates is that, in spite of specific instructions provided by the AO to filing

attorneys that the purely jurisdictional statutes contained within 28 U.S.C.

§§ 1251–1631 (Jurisdiction and Venue) should be listed as cause only

“when no other Federal statutes apply,” these provisions frequently do appear as cause, even when other statutes do apply. In effect, this misuse

generates missing information that produces underestimates of the judicial

impact of those nonjurisdictional statutes that should have been listed as

the statutory cause of action but were not. As a practical matter this makes

interpretation of current statutory cause of action data much more difficult

in the case of civil filings than in criminal filings.
Effects of Legislation on the Workload of the Courts

140

Filings Brought Under 20 U.S.C. §§ 1080, 1083 as Percentage of Total

Civil Filings

20 U.S.C. § 1080

0

0.5

1.0

1.5

2.0

2.5

3.0

198719881989199019911992

Percentage

20 U.S.C. § 1083

198719881989199019911992

0

0.5

1.0

1.5

2.0

2.5

3.0

Percentage

20 U.S.C. §§ 1080, 1083

198719881989199019911992

0

0.5

1.0

1.5

2.0

2.5

3.0

Percentage

In sum, the filing data for statutory cause of action that we present in

this report can be quite useful. They make it possible to derive a picture of

the effect of specific legislative enactments on the workload of the court in

a way that has heretofore not been possible. It is important to realize,

however, that the clarity of this picture will vary across various titles and

sections of the U.S. Code as a function of the accuracy with which the

cause data are reported, the specificity of the particular statutory cause of

action being analyzed, and the extent of the “noise” induced in the data by

the incorrect reporting of jurisdictional statutes as cause. For these reasons,

the picture of judicial impact developed in this exploratory phase of our

analysis should not be taken as either complete or definitive.
Preliminary Findings: A Retrospective Analysis

141

Workload Data

All of the graphs presented below contain estimates of the impact of various statutes as a proportion of the total criminal or civil judicial workload

of the courts. These judicial workload estimates are derived from preliminary data coming out of the Federal Judicial Center’s District Court Time

Study Project and may be subject to change.317

Criminal Statutes

In our analysis of the effect of individual criminal statutes on the workload

of the courts, we ordinally ranked statutes according to the number of

filings brought under each statute as a proportion of all criminal filings and

the workload created by these filings as a proportion of total criminal

workload. One of the general findings that emerged from this ranking is

that a small number of statutes account for a large proportion of the federal court’s criminal workload. As demonstrated by the graph below, cases

brought under the top twenty-five ranked criminal statutes generally accounted for around 85% of total criminal filings and up to 95% of total

criminal judicial workload.

Filings Brought Under the Top 25 Criminal Statutes

0

25

50

75

100

19871988

1989

199019911992

Total Criminal Filings Total Criminal Judicial Workload

Percentage

Of these top twenty-five criminal statutes, several exhibited filing trends

over the period that have significant implications for the federal courts.
Effects of Legislation on the Workload of the Courts

142

One example of this can be found in 18 U.S.C. § 922 (Firearms, Unlawful

Acts) and 18 U.S.C. § 924 (Firearms, Penalties). The graphs below depict

the proportion of all criminal filings (and the proportion of total criminal

judicial workload accounted for by these two statutes. As is readily seen,

these proportions rose dramatically over the period. Whereas in SY 1987

the two statutes combined accounted for 1.57% of all criminal filings and

2.33% of total criminal judicial workload, by SY 1992 these proportions

had risen to 5.25% and 6.43%, respectively.

Filings Brought Under 18 U.S.C. §§ 922, 924

18 U.S.C. § 922

0

1

2

3

4

5

6

7

198719881989199019911992

Percentage

18 U.S.C. § 924

0

1

2

3

4

5

6

7

198719881989199019911992

Percentage

18 U.S.C. §§ 922, 924

0

1

2

3

4

5

6

7

198719881989199019911992

Percentage

Total Criminal Filings Total Criminal Judicial Workload
Preliminary Findings: A Retrospective Analysis

143

Another example of significant filing trends over the period SY 1987 to

SY 1992 can be found in Title 21 drug cases. As shown in the graphs below, whereas the proportion of all criminal filings and total criminal judicial workload accounted for by 21 U.S.C. § 841 (Unlawful Acts, A) and 21

U.S.C. § 844 (Possession) exhibited significant downward trends over the

period, the proportion of all criminal filings and total criminal judicial

workload accounted for by 21 U.S.C. § 846 (Conspiracy) rose markedly.

An additional point of interest is the relatively large case weight associated

with filings under both 21 U.S.C. § 841 and 21 U.S.C. § 846.

The net effect of these inverse trends was to increase the proportion of

all criminal filings accounted for by these five statutes from 25.76% in SY

1987 to 31.27% in SY 1992 and to increase the proportion of the total

criminal judicial workload from 41.27% in SY 1987 to 45.06% in SY

1992.

Another area where statutory cause of action data can be informative

involves the imposition by Congress of statutory mandatory sentencing

minimums. For example, 18 U.S.C § 924(c)(1), as passed in 1988 and

amended in 1990, provides for the addition of a five-year prison term if an

offender uses or carries a firearm when committing certain crimes. The

data reveal that since the addition of this subsection there has been a

significant increase in the frequency with which the § 924 statutory provision is listed as cause. Whereas in SY 1987, the year before passage of

§ 924(c)(1), there were 95 filings that listed 18 U.S.C § 924 as cause

(accounting for 0.16% of all criminal filings), by SY 1989, one year after

passage of this subsection, the number had increased to 250 (accounting

for 0.39% of all criminal filings), and by SY 1992 to 1,037 (accounting for

1.52% of all criminal filings). Although this is an interesting change, and

indicative of the kind of information that can be derived from the analysis

of statutory cause of action data, it is insufficient in and of itself to show a

causal relationship between passage of § 924(c)(1) and the increased filings

under § 924. Such a determination would require further investigation to

control for other factors that could have caused this increase in filings.
Effects of Legislation on the Workload of the Courts

144

Filings Brought Under Title 21

21 U.S.C. § 952

0

10

20

30

40

50

1987198819891990

19911992

Percentage

21 U.S.C. § 963

0

10

20

30

40

50

1987198819891990

19911992

Percentage

21 U.S.C. §§ 841–963

0

10

20

30

40

50

1987198819891990

19911992

Percentage

21 U.S.C. § 846

0

10

20

30

40

50

1987198819891990

19911992

Percentage

21 U.S.C. § 844

0

10

20

30

40

50

1987198819891990

19911992

Percentage

21 U.S.C. § 841

0

10

20

30

40

50

1987198819891990

19911992

Percentage

Total Criminal Filings Total Criminal Judicial Workload
Preliminary Findings: A Retrospective Analysis

145

Civil Statutes

We also ordinally ranked civil statutes according to the number of filings

brought under each statute as a proportion of all civil filings and the

workload created by these filings as a proportion of total civil workload.

As with the graph presented earlier for criminal statutes, the graph below

shows the combined proportion of all civil filings and proportion of total

civil judicial workload, accounted for by the top twenty-five ranked civil

statutes for SY 1987 through SY 1992.

Filings Brought Under the Top 25 Civil Statutes

0

25

50

75

100

1987

198819891990

19911992

Total Civil Filings Total Civil Judicial Workload

Percentage

The results again show that a relatively small number of statutes account for a relatively large proportion of the federal courts’ civil workload.

Cases brought under the top twenty-five ranked civil statutes generally accounted for around 80% of both total civil filings and total civil judicial

workload. As examples of some of the significant trends exhibited by cases

brought under these top twenty-five civil statutes, we present below data

on the Employee Retirement Income Security Act (ERISA) and the

Racketeer Influenced and Corrupt Organizations Act (RICO).

To obtain a full picture of the case filings under ERISA, which covers

statutory sections 29 U.S.C. §§ 1001–1371, it helps to recall that the title

or section information is largely determined by the filing attorney. In some

instances, the filing attorney may simply wish to indicate that a case is an

ERISA suit and, therefore, list cause as 29 U.S.C. § 1001 (the title and
Effects of Legislation on the Workload of the Courts

146

definition statute), or the filing attorney may list as cause a number of

other statutes in the ERISA law. The graphs presented below provide filing

and workload data for 29 U.S.C. § 1001, 29 U.S.C. § 1132 (Civil

Enforcement), 29 U.S.C. § 1145 (Delinquent Contribution Actions), and

29 U.S.C. §§ 1001–1145 (a representative cluster of significant statutory

provisions within the Act) for SY 1987 through SY 1992. Both civil filing

data and civil judicial workload data are again presented as proportions of

all civil filings and total civil judicial workload.

Filings Under the Employee Retirement Income Security Act (ERISA) Percentage

29 U.S.C. § 1132

0

1

2

3

4

5

198719881989199019911992

Percentage

29 U.S.C. § 1145

0

1

2

3

4

5

198719881989199019911992

Percentage

29 U.S.C. §§ 1001–1145

0

1

2

3

4

5

198719881989199019911992

Percentage

29 U.S.C. § 1001

0

1

2

3

4

5

198719881989199019911992

Total Civil Filings Total Civil Judicial Workload

As is apparent from these graphs, ERISA filings and the workload they

imposed on the courts exhibited significant increases over this period. The
Preliminary Findings: A Retrospective Analysis

147

proportion of all civil filings accounted for by 29 U.S.C. §§ 1001–1145

rose from 2.23% in SY 1987 to 4.86% in SY 1992, and the proportion of

total civil judicial workload rose from 1.85% to 4.10%.

Another example of significant trends in civil filings can be seen in cases

brought under RICO (18 U.S.C. §§ 1961–1968). When the RICO Act was

passed in 1970, Congress made it a federal crime to use income derived

from a pattern of racketeering activity to operate or control an enterprise.

At the same time, RICO allows for civil remedies so that any person injured by a RICO violation may recover treble damages and attorney fees.

By 1985, it became clear to many observers that RICO was being used

routinely for purposes beyond those originally contemplated by Congress.

In that year, a series of hearings on civil RICO held by the Subcommittee

on Criminal Justice of the House Committee on the Judiciary gave voice to

these concerns.318

The degree of dissatisfaction with the way in which civil RICO was

used may have led to the trends seen in both civil and criminal RICO

filings since 1986. Although the enforcement provisions of RICO have remained in force, the proportion of filings accounted for by this statute fell

significantly on both the civil and criminal sides after 1986. In SY 1987,

the earliest year for which we have statutory data, civil suits reported under RICO statutory provisions accounted for 0.82% of all civil case filings.

By SY 1988, actions brought under these statutory provisions had fallen to

0.65% of all civil case filings. On the criminal side, RICO filings demonstrated an even greater decrease, from 0.72% of all criminal case filings in

SY 1986 to 0.36% in SY 1987. As shown in the graphs below, these trends

continued over the period for both filings and judicial workload.
Effects of Legislation on the Workload of the Courts

148

Filings Brought Under Racketeer Influenced and Corrupt Organizations

Act (RICO)

RICO, Criminal

0.0

0.2

0.4

0.6

0.8

1.0

198719881989199019911992

Percentage

RICO, Civil

0.0

0.2

0.4

0.6

0.8

1.0

198719881989199019911992

Percentage

Total Filings Total Judicial Workload

These data suggest that what appeared to many as a runaway statute in

1985 may have been harnessed or tamed. What these data do not show are

the numbers of RICO actions that are contained in pleadings but not listed

as the primary cause of action by the filing attorney. As a result, further

study would be needed to determine the full extent of court workload devoted to dealing with the effects of RICO legislation.

Recommendations for Future Data Collection

The preceding analysis has brought to light three limitations inherent in

current Administrative Office filing data, which, if corrected, would greatly

enhance the usefulness of these data in judicial impact assessment. First,

the “cause” field on the criminal JS-2 and JS-3 filing forms and the civil JS5 filing form should be made mandatory rather than optional. This would

ensure that data were provided on the statutory cause of action for each

case entering the federal system and, in time, facilitate creation of a highly

useful retrospective database on the judicial impact of various types of existing legislation. Second, the “cause” field should be subject to verification

by the clerk of the court or AO personnel. This would help to eliminate

many of the errors found in the currently available data—such as the listing of purely jurisdictional statutes as cause when other federal statutes

apply. Third, multiple “cause” fields should be provided on the JS-2, JS-3,

and JS-5 filing forms to permit the listing of more than one statutory cause
Preliminary Findings: A Retrospective Analysis

149

of action in those instances where more than one applies. This would be

particularly helpful with respect to criminal cases where charges are often

brought under more than one count.

Summary

Currently available statutory cause-of-action data can provide some information on which statutes are causing significant impact on the caseload

of the courts, and what the trends of that impact have been. Moreover,

when these statutory cause-of-action data are combined with case-weight

information, we are able to gain some insight regarding the judicial workload created by these statutes.

Limitations inherent in the current data, combined with limitations in

our current knowledge of the causal relationship between statutes and

court workload, however, dictate that any conclusions predicated on these

insights must be the subject of a healthy dose of skepticism. Because of

this, the findings presented in this report and the framework of analysis

that was used to develop them should be viewed as an intermediate, rather

than final, step toward the ultimate goal of aiding the courts in forecasting

the judicial impact of proposed legislation by providing information on the

impact of previously enacted legislation.

What the current analysis does demonstrate, however, is (1) that in

certain circumstances, statutory cause-of-action data can provide a clear

picture of the judicial impact of specific statutes; (2) that in a broader set

of circumstances, statutory cause-of-action data can usefully augment

other available filing data to enhance our understanding of judicial impact;

and (3) how currently available data might be revised to facilitate development of a retrospective database on judicial impact and thereby enhance

future efforts in judicial impact assessment.

151

VI. Summary

To briefly summarize, the FJC Conference on Assessing the Effect of

Legislation on the Workload of the Courts brought together a broad spectrum of individuals with a shared interest in judicial impact assessment for

the purpose of exchanging information and ideas. In the final analysis, at

least three principal benefits emerged from this effort.

First, researchers currently engaged in work on judicial impact assessment gained many practical insights on how the quality of that work might

be improved.

Second, the exploration by participants of the appropriate role of judicial impact assessment as a vehicle for interbranch communication provided many insights regarding how the content of assessments and the

structure of the institutions charged with creating those assessments affect

their value as a communication tool.

Finally, perhaps the most lasting benefit to be derived from this conference is the example it provided of what Maria Schmidt called the

“economies of scale” that can be derived from state–federal and interbranch cooperation. By providing a forum in which some of the individuals working in this area in federal and state government, within the judicial

and legislative branches, as well as in academia and other nongovernmental institutions, could share their experiences and thoughts about the future, the conference helped foster a cooperative endeavor that may lead to

substantial improvements in the science of judicial impact assessment in

the future.

153

Endnotes

1. Ruth Bader Ginsburg, A Plea for Legislative Review, 60 S. Cal. L. Rev. 996 (1987).

2. A statistical year is a twelve-month reporting period ending June 30. Administrative

Office of the U.S. Courts, Annual Report of the Director, at Table C-2, U.S. District Courts

Civil Cases Commenced, by Basis of Jurisdiction and Nature of Suit (1961 & 1971).

According to the classification scheme used by the Administrative Office, district court civil

cases are divided into five general categories: contract actions, real property actions, tort actions, actions under statutes, and other. “Actions under statutes” are cases filed under acts

passed by Congress, such as antitrust, civil rights, securities, and Social Security. In the

twenty years since the chief justice’s speech, the number of civil actions under statutes filed in

U.S. district courts has continued to grow rapidly, reaching 132,818 (58% of the civil

caseload) in statistical year 92. Administrative Office of the U.S. Courts, Annual Report of

the Director, 1992.

3. The Panel on Legislative Impact on Courts was convened in October 1977, under the

aegis of the National Research Council’s Committee on Research on Law Enforcement and

Criminal Justice. National Research Council, Forecasting the Impact of Legislation on Courts

at vii (Keith Boyum & Samuel Krislov eds., 1980). The National Research Council was established by the National Academy of Sciences in 1916.

4. For additional information on why judicial impact statements failed with regard to

judgeship forecasts, see Paul Nejelski, Judicial Impact Statements: Ten Critical Questions We

Must Not Overlook, 66 Judicature 134 (Sept./Oct. 1982).

5. See Hans A. Linde, Observations of a State Court Judge, in Judges and Legislators:

Toward Institutional Comity 117 (Robert A. Katzmann ed., 1988). Linde lists several reasons

why “[t]he active participation of state judges in the policy process is much more taken for

granted and much less controversial than the involvement of federal judges in the national

government.” Among the reasons are: many state judges are elected and, therefore, do not

consider themselves above the fray, and state judges are in closer geographical proximity to

their state capitals.

6. For a description of the work being done by this office, see Nancy Potok, Development

and Ongoing Operations, in this publication.

7. Linda K. Ridge et al., Seeking a New Partnership: Guidebook for Legislative–Judicial

Relations 14 (National Center for State Courts 1992).

8. For a description of this project, see Thomas A. Henderson et al., The Impact of

National Legislation on State Courts, in this publication.

9. Conference of State Court Administrators, Preparing State Court Impact Statements for

National Legislation (August 1994).

10. Benjamin N. Cardozo, A Ministry of Justice, 35 Harv. L. Rev. 113, 114 (1921).

11. See Ridge et al., supra note 7, at 2; see also Robert A. Katzmann, The Underlying

Concerns, in Judges and Legislators: Toward Institutional Comity 7 (Robert A. Katzmann

ed., 1988).

12. Robert A. Katzmann, Summary of Proceedings, in Judges and Legislators: Toward

Institutional Comity 162 (Robert A. Katzmann ed., 1988).

13. Cardozo, supra note 10, at 125.
Effects of Legislation on the Workload of the Courts

154

14. Keith Boyum & Samuel Krislov, Judicial Impact Statements: What’s Needed, What’s

Possible?, 66 Judicature 137 (Sept./Oct. 1982).

15. Paul Nejelski, Judicial Impact Statements: Ten Critical Questions We Must Not

Overlook, 66 Judicature 123, 125 (Sept./Oct. 1982).

16. Warren Burger, The State of the Federal Judiciary–1972, 58 A.B.A. J. 1049 (1972).

17. Nejelski, supra note 15, at 130 n.19.

18. See, e.g., Nejelski, supra note 15; Boyum & Krislov, supra note 14; Cornelius Kerwin,

Justice-Impact Statements and Court Management: And Never the Twain Shall Meet, in The

Analysis of Judicial Reform 171 (Philip L. Dubois ed., 1982); and Susan M. Olson, Judicial

Impact Statements for State Legislation: Why So Little Interest?, 66 Judicature 147

(Sept./Oct. 1982).

19. Federal Courts Study Committee, Report of the Federal Courts Study Committee 89–

90 (April 2, 1990).

20. The ABA resolution supported “legislation by each state legislature and the United

States Congress mandating the preparation of judicial impact statements to be attached to

each bill or resolution that affects the operations of State or Federal courts”; urged each state

legislature and Congress “to establish a mechanism within its budgeting process to prepare

judicial impact statements determining the probable costs and effects of each bill or resolution

that has an identifiable and measurable effect on the dockets, work loads, efficiency, staff and

personnel requirements, operating resources and currently existing material resources of

appellate, trial and administrative law courts”; and urged that judicial impact statements be

attached to bills affecting the courts before committee hearings were permitted to proceed.

American Bar Association Resolution, Report No. 302, adopted by the House of Delegates,

August 12–13, 1991.

21. 1992 Wisconsin Judicial Conference Resolution: Judicial Impact Statement, prepared

and offered by Circuit Judge Harold V. Froehlich, Outagamie County, Wis. The resolution

cited the “overpowering need for the Legislature to recognize the workload burden being

placed on the judiciary when passing legislation,” and endorsed the creation of a judicial impact statement by the legislature “to measure and expose the effect of legislation on the judiciary.”

22. According to a survey of state legislative staff, most view judicial impact statements as

the information provided by the judiciary for use in fiscal notes that are prepared by the

legislative staff. Ridge et al., supra note 7, at 15.

23. Id. at 14.

Nejelski, supra note 15, at 132–33, and Boyum & Krislov, supra note 14, at 139, caution

against placing so much emphasis on the costs of new legislation that its benefits are overlooked. “Legislators,” Boyum and Krislov advise, “should know not only the number of new

cases that new legislation may bring, but they should also know the social costs of doing

nothing. . . . There may be cases presently on dockets which are less deserving than those

which would arrive as a result of new legislation.” Boyum & Krislov, supra note 14, at 146.

24. For a discussion of the intangible impacts, see Boyum & Krislov, supra note 14, at

138.

One might ask whether the legislature needs the information about nonbudgetary matters

or whether such issues are of concern only to the internal administration of the courts. The

answer may be that these less tangible impacts often have long-run fiscal effects. For example,
Endnotes

155

changes in a job function will affect the qualifications required of applicants and may eventually lead to salary adjustments. Less tangible impacts also affect persons outside the courts,

including litigants, who are concerned with access to the courts, the speedy processing of

cases, obtaining opportunities to tell their stories to tribunals, and the administration of justice.

25. Ridge et al., supra note 7, at 15.

26. A. Fletcher Mangum & Frank Arnett, The Impact of Legislation on the Courts 3

(Report to the Long Range Planning Committee of the Judicial Conference of the United

States, September 1992).

27. The Wisconsin Legislative Reference Bureau attorney who drafts a bill makes the initial determination of whether the bill requires a fiscal estimate. If the attorney concludes that

no fiscal estimate is needed, none is normally developed, but members of the legislature may

ask the legislature’s presiding officer to review the attorney’s decision. Wis. Legislative

Reference Bureau Info. Bull 90-IB-6, 1991 Legislative Session Fiscal Estimate Manual at 3

(Dec. 1990).

28. 1967 Wis. Laws ch. 291, § 2, creating Wis. Stat. § 13.10(2) (1967), presently Wis.

Stat. § 13.093(2)(a) (1991–1992). For the legislature’s directives regarding fiscal notes, see

also 1977 Assembly J. Resl. 23 and modified by 1987 S. J. Resl. 48, reprinted in Wis.

Legislative Reference Bureau Info. Bull 90-IB-6, 1991 Legislative Session Fiscal Estimate

Manual at 18–21 (Dec. 1990).

29. In about half the states, the legislature retains dominion over all fiscal notes (perhaps

requesting data from agencies). In other states, the state agencies and the judicial branch prepare fiscal notes for submission to the legislature. Ridge et al., supra note 7, at 15.

30. Office of the Wisconsin Director of State Courts, Fiscal Estimate, 1991 Assembly Bill

622 (Feb. 19, 1992) (prepared by Sheryl Gervasi).

31. District Attorney’s Fiscal Estimate, 1991 Assembly Bill 622 (Oct. 22, 1991) (prepared

by Linda Seemeyer).

32. State Public Defender’s Fiscal Estimate, 1991 Assembly Bill 622 (Feb. 2, 1992)

(prepared by Evelyn Mazack).

33. Department of Health and Social Services Fiscal Estimate, 1991 Assembly Bill 622

(Jan. 10, 1992) (prepared by Ellen Hadidian).

34. Wis. Legislative Reference Bureau Info. Bull 90-IB-6, 1991 Legislative Session Fiscal

Estimate Manual at 6 (Dec. 1990).

Paul Nejelski observes that judicial impact statements “may be prepared in a totally biased fashion for political purposes but be cloaked in the guise of scientific neutrality and objectivity.” Paul Nejelski, Judicial Impact Statements: Ten Critical Questions We Must Not

Overlook, 66 Judicature 123, 127 (Sept./Oct. 1982).

35. The importance of the fiscal estimate to the passage of the bill can be seen in the

Wisconsin procedure for submitting the fiscal estimate to the author of the bill. After the

Wisconsin Legislative Reference Bureau submits a fiscal estimate to the author of a bill, the

author has five days in which to request a revised fiscal estimate. The primary author of the

bill may also request a supplemental fiscal estimate from the Legislative Fiscal Bureau or the

Department of Administration if the primary author disagrees with the agency’s estimates.

Wis. Legislative Reference Bureau Info. Bull 90-IB-6, 1991 Legislative Session Fiscal Estimate

Manual at 6 (Dec. 1990).
Effects of Legislation on the Workload of the Courts

156

36. Paul Nejelski suggests that centralizing the preparation of judicial impact statements

might improve the preparers’ ability to learn from the process. “The cumulative development

of statements,” he notes, “should lead to improved methodology and a better understanding

of the data and its limitation.” Nejelski, supra note 34, at 129. He further observes that

statements prepared by an interbranch unit would “benefit from a diversity of inputs, would

contain fewer real or perceived biases, and would insulate the preparers from interested parties.” Id. at 131.

37. Paul Nejelski notes that the best simulations of potential impact are “done by persons

knowledgeable in both legal procedures and substance as well as social science

quantification.” Nejelski observes that social scientists “may err in developing very elaborate

and superficially convincing models that do not take into account the reality of the law or its

administration,” while “[l]awyers without a quantitative sense may overlook important system problems.” Nejelski, supra note 34, at 129. This observation suggests that teaming

members of the judiciary with persons skilled in the social sciences would create a synergy of

skills.

38. As illustrated by the fiscal estimates for the Wisconsin parental consent bill, caseload

forecasting requires identification and analysis of the social, political, economic, or demographic factors relevant to a particular piece of legislation. “To move from the number of

persons potentially affected by a new law to the number of persons likely to pursue a dispute

under the new law to the point of a court case requires an understanding of all the various

and complex reasons why people litigate.” Olson, supra note 18, at 148. See also William

Felstiner et al., The Emergence and Transformation of Disputes: Naming, Blaming,

Claiming..., 15 Law & Soc’y Rev. 631 (1980–1981).

39. Paul Nejelski observes that impact statements adopted without careful planning may

become our masters, rather than our servants. It would be a mistake, he asserts, to require an

impact statement for all legislation because we cannot currently produce the quality of results

we need, because the cost is too great to justify a universal requirement, and because they

“rest on the weak theoretical foundation that the current system is perfect and its only response to new responsibilities is ‘more of the same.’” Nejelski, supra note 34, at 124–25.

40. Eliminating deficiencies could reduce the workload of the judiciary by reducing the

need for statutory interpretation. However, the impact of this improved drafting on the judiciary may be difficult to calculate. Mangum and Arnett conclude that “[t]he ambiguities inherent in statutory interpretation make prospective forecasting of judicial impact rather

difficult. Because of this, the impact of poorly worded and ambiguous statutes will likely remain the province of written judicial opinions.” Mangum & Arnett, supra note 26, at 13.

Statutory ambiguities arise in various forms. Statutes may have gaps if no statutory provision deals with an issue. Statutes may be vague if a statutory provision covers an issue but

its meaning is unclear. Statutes may overlap if more than one statutory provision deals with

an issue, but the provisions suggest different interpretations. See Robert A. Katzmann,

Bridging the Statutory Gulf Between Courts and Congress: A Challenge for Positive Political

Theory, 80 Geo. L.J. 653, 658–60 (1992).

41. An issue might be deliberately ignored or suppressed to ensure passage of a bill. Or

the legislation may set general policy ground rules, leaving the agencies or courts to fill in the

details in the context of individual fact situations. See Gregory E. Maggs, Reducing the Costs
Endnotes

157

of Statutory Ambiguity: Alternative Approaches and the Federal Courts Study Committee, 29

Harv. J. on Legis. 123, 132–33 (1992).

42. The Federal Courts Study Committee’s checklist includes the following items:

• the appropriate statute of limitations;

• whether a private cause of action is contemplated;

• whether preemption of state law is intended;

• the definition of key terms;

• the men’s rea requirements in criminal statutes;

• severability;

• whether a proposed bill would repeal or otherwise circumscribe, displace, impair, or

change the meaning of existing federal legislation;

• whether state courts are to have jurisdiction and, if so, whether an action would be

removable to federal court;

• the types of relief available;

• whether retroactive applicability is intended;

• the conditions for any award of attorney’s fees authorized;

• whether exhaustion of administrative remedies is a prerequisite to any civil action authorized;

• the conditions and procedures relating to personal jurisdiction over persons incurring

obligations under the proposed legislation;

• the viability of private arbitration and other dispute resolution agreements under enforcement and relief provisions; and

• whether any administrative proceedings provided for are to be formal or informal.

Federal Courts Study Committee, supra note 20, at 91–92.

Professor Gregory Maggs adds the following items:

• extraterritorial application;

• availability and calculation of interest;

• remedies for government violations (sovereign immunity);

• official immunity;

• availability of jury trials;

• reviewability of agency actions and standard of review;

• standing issues;

• relief available to plaintiffs; and

• meanings of references to other laws or rights.

See Maggs, supra note 41, at 142–51.

It is clear from a cursory glance that the items on these checklists arise in many statutory

interpretation cases. Thus, the use of checklists in drafting should be helpful in reducing litigation.

In addition, checklists work best at exposing gaps in the statutes. They probably do not

work as well for statutory vagueness or overlapping provisions.

43. Federal Courts Study Committee, supra note 20, at 91.

44. The legislation proposed that each congressional committee include with any bill or

resolution a “judicial impact statement” certifying that the items in the checklist—referred to

as “legislative and judicial impact issues”—had been considered. The bill also proposed that,

to the greatest extent practicable, each member of Congress should consider these legislative
Effects of Legislation on the Workload of the Courts

158

and judicial impact issues for any bill or resolution, and any amendment to a bill or resolution. S. 1569, 102d Cong. (1991) (introduced by Sen. Howell Heflin).

45. Senior Legislative Drafting Seminar, Nov. 18–21, 1992, sponsored by the National

Conference of State Legislatures in conjunction with the University of Florida College of Law.

46. Telephone interview with Peter Dykman, deputy chief, Wisconsin Legislative

Reference Bureau, by Gabrielle Lessard (April 14, 1993).

47. Wis. Legislative Reference Bureau Info. Bull 90-IB-6, 1991 Legislative Session Fiscal

Estimate Manual at 15–17 (Dec. 1990).

48. Statutory ambiguities involve costs outside as well as inside the courts. The people

governed by the law incur costs by determining how to conduct themselves. The legislature

may incur costs because of frustrated objectives brought about by either the public’s or the

courts’ interpretation. The legislature may also incur costs through reexamining and revising

the legislation to achieve its goals. See Maggs, supra note 41, at 126–30.

49. Congressman Benjamin L. Cardin of Maryland has stated that it would be better if

the legislature understood the canons of construction and the problems its bills can create for

the courts, while judges could be better in understanding the legislative process. Proceedings

of the Forty-Ninth Judicial Conference of the District of Columbia Circuit, 124 F.R.D. 241,

317 (1988) [hereinafter Proceedings].

50. Karl N. Llewellyn illustrated this problem in his classic discussion of the canons’

“thrust and parry.” Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the

Rules or Canons About How Statutes Are To Be Construed, 3 Vand. L. Rev. 395, 401–06

(1950).

51. Congressman Benjamin L. Cardin expressed his concern that members of Congress

don’t realize that colloquies, which they often perform “for the local audience or to cover a

. . . member politically, or in some cases to help a federal bureaucracy in interpreting and

enforcing our laws” are being used to discern legislative intent. He advised courts to look at

the statutory product rather than the process through which it is made, since “[m]any times

members get up and talk on the floor, without real deep thought. We obviously don’t have

briefs to argue different positions before we cite to what we think a statute means.”

Proceedings, supra note 49, at 315.

52. Robert A. Katzmann, Bridging the Statutory Gulf Between Courts and Congress: A

Challenge for Positive Political Theory, 80 Geo. L.J. 653, 658–60 (1992).

53. Judge Henry Friendly discussed the gap between judicial knowledge of needed statutory modification and legislative inaction in The Gap in Lawmaking—Judges Who Can’t and

Legislators Who Won’t, 63 Colum. L. Rev. 787 (1963). Then-Judge Ruth Bader Ginsburg

updated Friendly’s exploration—noting the absence of progress—in A Plea for Legislative

Review, 60 S. Cal. L. Rev. 995 (1987).

Perhaps a team of retired judges, lawyers, scholars, and legislative drafters might review

proposed legislation, not for the wisdom of the proposal but with the goal of clarifying the

bill for the public and the courts that must interpret them.

54. See TVA v. Hill, 437 U.S. 153 (1978), discussed in William N. Eskridge, Jr.,

Overriding Supreme Court Statutory Interpretation Decisions, 101 Yale L.J. 331, 389

(1991).

55. Eskridge, Jr., supra note 54, at 351. Eskridge found that “decisions that were overridden were more likely to have relied on a statute’s plain meaning or the canons of construc-
Endnotes

159

tion than either decisions not scrutinized or decision[s] scrutinized but not overridden.

Interestingly, decisions scrutinized but not overridden tended to have more legislative history

reasoning than the other two categories, while purpose and policy reasoning was greatly

overrepresented in the unscrutinized decisions category.” Id. at 351.

56. The Supreme Courts of New York, Minnesota, and Illinois have recently expressed

their agreement with this approach. See, e.g., Bjerga v. Maislin Transport & Carriers Ins.

Co., 400 N.W.2d 99, 100 (Minn. 1987); In re Sarah K., 66 N.Y.2d 223, 242, 487 N.E.2d

241, 251 (1988); In re Estate of Cooper, 125 Ill.2d 363, 370, 532 N.E.2d 236, 239 (1988).

See Hans A. Linde, Observations of a State Court Judge, in Judges and Legislators: Toward

Institutional Comity 125–26 (Robert A. Katzmann ed., 1988).

57. Robert A. Katzmann studied congressional staff awareness of fifteen significant statutory opinions of the D.C. Circuit Court of Appeals and found that staffers were unaware of

twelve of the fifteen decisions. Proceedings, supra note 49, at 323–24 (remarks of Robert A.

Katzmann).

58. Eskridge, Jr., supra note 54, at 361. In his study of Congress and the U.S. Supreme

Court, Eskridge found that interest groups focus generally on decisions of the U.S. Supreme

Court, not other federal courts, and on the cases’ holdings. They tend to overlook other messages to legislators that may be embedded in the text of the opinions.

59. Justice John Paul Stevens has noted that judicially identified needs for statutory repair

often “involve issues that have little or no political significance in the partisan sense.” Letter

from Hon. John Paul Stevens, Hearings on S. 704, quoted in Ginsburg, supra note 53, at

1013. Judge Ginsburg has commented that “[y]ou don’t score points with most voters for

cleaning up commas and gaps and glitches.” Proceedings, supra note 49, at 332.

60. Ginsburg, supra note 53, at 997, quoting Young v. Community Nutrition Institute,

476 U.S. 974 (1986) (Justice Sandra D. O’Connor).

61. Federal Courts Study Committee, supra note 20, at 90.

62. The U.S. Court of Appeals for the D.C. Circuit is currently engaged in an experimental effort to improve its communication with Congress. Working through Brookings

Institution Fellow Robert A. Katzmann, the D.C. Circuit Judicial Conference has established

a Project on Statutory Revision. Under the project, the circuit’s chief staff counsel selects

opinions of interest to Congress and sends them to the House Legislative Counsel, which ensures that the opinions reach the speaker, the minority leader, the parliamentarian, the general counsel to the clerk, and the appropriate persons in the relevant committees. Katzmann,

supra note 40, at 665.

63. For a discussion of these mechanisms, see Shirley S. Abrahamson & Robert L.

Hughes, Shall We Dance? Steps for Legislators and Judges in Statutory Interpretation, 75

Minn. L. Rev. 1045 (1991).

64. Okla. Stat. Ann. tit. 74, § 20a (West 1993).

65. Ill. Rev. Stat. ch. 63, para. 29.5 (1985).

66. Minn. Stat. § 3C.04.3 (1993).

67. Abrahamson & Hughes, supra note 63, at 1063–64.

68. Alaska Stat. §§ 24.20.010, 24.20.020, 24.20.065 (a) and (b) (1992).

69. Wis. Stat. § 13.93(2)(d) (1990–1991).

The current revisor refers all cases in which the court states that a statutory provision is

ambiguous. Telephone interview with Bruce Holway, assistant revisor of statutes, by
Effects of Legislation on the Workload of the Courts

160

Gabrielle Lessard (April 14, 1993). However, a judicial statement that a statute is ambiguous

or unambiguous for purposes of applying Wisconsin’s canons of statutory construction may

not necessarily be intended by the court to imply that legislative review of the statute is required.

70. Interview with Janice Baldwin, senior staff attorney, Wisconsin Legislative Council,

by Gabrielle Lessard (April 14, 1993).

71. Abrahamson & Hughes, supra note 63, at 1079.

72. Id. at 1075.

73. Id. at 1076.

74. Andrew D. Christie & Nancy C. Maron, Find a Better Way To Work with the

Legislature, 30 Judges’ J. 15, 17 (Summer 1991).

75. Federal Courts Study Committee, supra note 20, at 89–90.

76. Abrahamson & Hughes, supra note 63, at 1072. These states are Mississippi, Idaho,

and Illinois.

77. Ill. Const. art. 6, § 17.

78. Proceedings, supra note 49, at 326 (remarks of Robert A. Katzmann).

79. Id.

80. Cardozo, supra note 10.

81. Abrahamson & Hughes, supra note 63, at 1071.

82. Id. at 1075–81.

83. Deanell Reece Tacha, Judges and Legislators: Renewing the Relationship, 52 Ohio St.

L.J. 279 (1991).

84. Proceedings, supra note 49, at 334–35.

85. Christie & Maron, supra note 74, at 17.

86. The October 1989 national conference titled “Legislative–Judicial Relations: Seeking

a New Partnership” produced a set of recommended mechanisms to promote and improve interbranch communication. The mechanisms included: (1) judicial testimony before legislative

committees; (2) legislative involvement in planning long-range court system improvement; (3)

educational programs for legislators on court system issues; (4) judicial liaisons to the legislature; (5) legislative/judicial representation on task forces and committees; (6) state and regional conferences on legislative-judicial relations; (7) judicial impact statements; and (8)

ground rules for interbranch communication. Ridge et al., supra note 7, at 9.

87. Katzmann, supra note 11.

88. Ridge et al., supra note 7, at 7.

89. When a proposal to remove manufacturing restrictions on the regional Bell operating

companies was pending in the U.S. Senate, Illinois Senator Paul Simon wrote to federal Judge

Harold Green, who had presided over the AT&T breakup, seeking advice. Judge Green responded that he believed it inappropriate to comment, outside his opinions, on pending legislation that might come before his court. However, he went on to say that he felt comfortable

assisting the senator by summarizing the relevant portions of his published opinions, and he

proceeded to do so in his letter.

Senator John Breaux subsequently criticized Judge Green’s letter on the Senate floor.

According to Breaux, it was “highly unusual” and “probably improper” for the senators to

have the judge’s past views on matters that were the subjects of pending legislation. Senator

Ernest Hollings joined the fray, stating that he found it “totally uncalled for and inappropri-
Endnotes

161

ate” for Judge Green to respond to Senator Simon’s inquiry. Annual Meeting of the American

Judicature Society, Panel, Building Bridges Instead of Walls: Fostering Communication

Between Judges and Legislators, 75 Judicature 167, 173–74 (1991).

90. Christie & Maron, supra note 74, at 16. Judge Tacha contends that “[t]he perceived

limitation on interaction between branches goes far beyond what the constitution expressly

requires.” Tacha, supra note 83, at 282.

91. Linde, supra note 56, at 123.

92. Maeva Marcus & Emily Field Van Tassel, Judges and Legislators in the New Federal

System, 1789–1800, in Judges and Legislators: Toward Institutional Comity 33 (Robert A.

Katzmann ed., 1988).

History is replete with examples of dialogue between the branches serving the development of the law. See John W. Winkle III, Judges as Lobbyists: Habeas Corpus Reform in the

1940s, 68 Judicature 263 (1985).

93. Linde, supra note 56, at 117–19. See also Henry Glick, Policy-Making and State

Supreme Courts: The Judiciary as an Interest Group, 5 Law & Soc’y Rev. 271 (1970).

Susan Olson observes that informal communication between state courts and legislatures

is so common that assessment of legislation’s impact on the courts is intertwined with advocacy for or against its implementation. “In fact,” she notes, “so many court systems already

lobby on behalf of court-related legislation that they often confuse those efforts with efforts

to assess impact.” Olson, supra note 18, at 148–49.

For a study of personal communications between legislators and judges, see John D.

Felice & John C. Kilwein, High Court–Legislative Relations: A View from the Ohio

Statehouse, 77 Judicature 423 (1993).

94. Christie & Maron, supra note 74, at 15–16.

95. Model Code of Judicial Conduct, Canon 4A, B, C(1) at 18–19 (1990).

96. Judge Ruth Bader Ginsburg has noted that there are over 600 federal judges, and

most of them don’t know the structure of the numerous congressional committees.

Proceedings, supra note 49, at 332. A similar situation undoubtedly exists at the state level.

97. Linde, supra note 56, at 125–26. See also Robert A. Katzmann, supra note 12, at 163,

noting judges’ beliefs that it was their First Amendment right to express their views on

proposed legislation.

98. I am indebted to Prof. Charles Geyh for this phrase.

99. Samuel Krislov & Paul Kramer, The Future of the California Civil Courts, 66 S. Cal.

L. Rev. 1915 (1993), esp. 1928–37.

100. This is based on personal and conference comments over a period of years.

101. Lawrence Friedman & Robert Percival, A Tale of Two Courts: Litigation in

Alameda and San Benito Counties, 10 Law & Soc’y Rev. 267 (1976). This gem of an article

has provoked a rich literature both on the theoretical and applied side and is genuinely seminal.

102. Wayne McIntosh, 150 Years of Litigation and Dispute Settlement: A Court Tale, 15

Law & Soc’y Rev. 823 (1980–1981).

103. On differentiating claims and case type, see, e.g., Keith Boyum, The Etiology of

Claims, in Empirical Theories About Courts 143–60 (Keith Boyum & Lynn Mather eds.,

1983). See also Michael J. Saks, Do We Really Know Anything About the Behavior of the

Tort Litigation System—and Why Not?, 140 U. Pa. L. Rev. 1147 (1992).
Effects of Legislation on the Workload of the Courts

162

104. See, e.g., Heleen F. P. Ietswaart, The International Comparison of Court Caseloads:

The Experience of the European Working Groups, 24 Law & Soc’y Rev. 571 (1990) and

David Engel, Litigation Across Space and Time, 24 Law & Soc’y Rev. 333 (1990).

105. See Frank Munger, Trial Courts and Social Change: The Evolution of a Field of

Study, 24 Law & Soc’y Rev. 217 (1990) and Ietswaart, supra note 104.

106. See, e.g., Lawrence Friedman, Courts Over Time: A Survey of Theory and Research,

in Empirical Theories About Courts 7–50 (Keith Boyum & Lynn Mather eds., 1983).

107. See Samuel Krislov, Theoretical Perspectives on Case Load Studies: A Critique and a

Beginning, in Empirical Theories About Courts 160–87 (Keith Boyum & Lynn Mather eds.,

1983) and Munger, supra note 105.

108. McIntosh, supra note 102.

109. See Spurned Lovers Suit Goes to Trial, Chic. Trib., Nov. 4, 1993, § 2S, at 11.

110. For these and other examples of the multiple changes that occur with new legal issues, see National Research Council, Forecasting the Impact of Legislation on the Courts

(Keith Boyum & Samuel Krislov eds., 1980).

111. McPherson v. Buick Motor, 217 N.Y. 382, 111 N.E. 1050 (1916).

112. See John Haley, The Myth of the Reluctant Litigant, 4 J. Japanese Stud. 359 (1978).

He has modified his thesis a bit in his Authority Without Power (1991), suggesting less direct

intention by government, but his data as to the flow of events seems conclusive. His work

flies in the face of “cultural” explanations and has produced a spate of work admirably

summed up in Setsuo Miyazawa, Taking Kawashima Seriously: A Review of Japanese

Research on Japanese Legal Consciousness and Disputing Behavior, 21 Law & Soc’y Rev.

219 (1987).

113. See Friedman, supra note 106, and Krislov, supra note 107; see also Stephen

Daniels, Ladders and Bushes: The Problem of Caseloads and Studying Court Activities Over

Time, 1984 Am. B. Found. Res. J. 751 (1984).

114. Marc Galanter, Case Congregations and Their Careers, 24 Law & Soc’y Rev. 371

(1990).

115. Friedman & Percival, supra note 101; José Juan Toharia, Economic Development

and Litigation: The Case of Spain, 4 Jahrbuch für Rechtssoziologie und Rechtstheorie 25

(1976); and Wolf Heydebrand & Carroll Seron, The Rising Demand for Court Services: A

Structural Explanation of the Caseload of U.S. District Courts, 11 Just. Sys. J. 303 (1986).

116. See Krislov, supra note 107, and Joseph Sanders, The Interplay of Micro and Macro

Processes in the Longitudinal Study of Courts: Beyond the Durkheimian Tradition, 24 Law

& Soc’y Rev. 241 (1990).

117. Munger, supra note 105, at note 26.

118. Wolf Heydebrand & Carroll Seron, Rationalizing Justice: The Political Economy of

Federal District Courts (1990).

119. National Research Council, Forecasting the Impact of Legislation on the Courts

(Keith Boyum & Sam Krislov eds., 1980).

120. Special Issue: Longitudinal Studies of Trial Courts, 24 Law & Soc’y Rev. (Frank

Munger ed., 1990).

121. Sanders, supra note 116; see also Albert Reiss, Jr., Longitudinal Study of Trial

Courts: A Plea for the Development of Explanatory Models, 24 Law & Soc’y Rev. 345

(1990).
Endnotes

163

122. See Sanders, supra note 116.

123. Haley, supra note 112.

124. See Robert A. Kagan, The Routinization of Debt Collection: An Essay on Social

Change and Conflict in the Courts, 18 Law & Soc’y Rev. 323 (1984).

125. Friedman, supra note 106.

126. Lawrence Friedman & Robert Percival, A Tale of Two Courts: Litigation in

Alameda and San Benito Counties, 10 Law & Soc’y Rev. 267 (1976).

127. Galanter, supra note 114.

128. Friedman & Percival, supra note 126.

129. Austin Sarat, Alternatives in Dispute Processing: Litigation in Small Claims Court,

10 Law & Soc’y Rev. 339 (1976).

130. See Social Indicators (Raymond Bauer ed., 1966).

131. Krislov, supra note 107, and Spurned Lovers, supra note 109.

132. Keith Boyum & Samuel Krislov, Judicial Impact Statements: What’s Needed, What’s

Possible, 66 Judicature 137 (Sept./Oct. 1982).

133. Marc Galanter, Case Congregations and Their Careers, 24 Law & Soc’y Rev. 371

(1990).

134. National Research Council, Forecasting the Impact of Legislation on the Courts

(Keith Boyum & Samuel Krislov eds., 1980).

135. Austin Sarat, Judicial Capacity: Courts, Court Reform, and the Limits of the Judicial

Process, in The Analysis of Judicial Reform 31 (Philip Dubois ed., 1982).

136. Cornelius Kerwin, Justice-Impact Statements and Court Management: And Never

the Twain Shall Meet, in The Analysis of Judicial Reform 171 (Philip Dubois ed., 1982). The

question of the appropriate size of the federal judiciary arose again in the early 1990s. See

Gordon Bermant et al., Imposing a Moratorium on the Number of Federal Judges: Analysis

of Arguments and Implications (Federal Judicial Center 1993).

137. Gunther Teubner, Substantive and Reflexive Elements in Modern Law, 17 Law &

Soc’y Rev. 239, 270–71 (1983).

138. James O’Connor, The Fiscal Crisis of the State (1973); Wolf Heydebrand & Carroll

Seron, Rationalizing Justice: The Political Economy of Federal District Courts (1990).

139. Lawrence Friedman, Total Justice (1985).

140. Jurgen Habermas, Legitimation Crisis (Thomas McCarthy trans., 1975).

141. Lawrence Friedman, Law Reform in Historical Perspective, 13 St. Louis U. L.J. 351

(1969); see also Magali Sarfatti Larson, The Rise of Professionalism: A Sociological Analysis

(1977).

142. Huge Backlog of Federal Cases Frustrates All Parties Involved, Sharp Increase in

Criminal Trials, Shortage of Staff in Courts Offer Little Hope of Relief to Clogged System,

Buff. News, Mar. 27, 1993, at 1.

143. Keith Boyum & Sam Krislov, Judicial Impact Statements: What’s Needed, What’s

Possible?, 66 Judicature 137, 143 (1982).

144. Council on Competitiveness, Report on Judicial Reform 9 (1991) and Larry Kramer,

“The One-Eyed Are Kings”: Improving Congress’ Ability To Regulate the Use of Judicial

Resources (Program in Civil Liability, Working Paper 124, Yale Law School 1990).

145. Hearings on S. 1569 Before the Subcomm. on Courts and Administrative Practice of

the Senate Comm. on the Judiciary, 102d Cong., 1st Sess., Oct. 3, 1991 & Oct. 17, 1991.
Effects of Legislation on the Workload of the Courts

164

146. ABA Special Committee on Funding and the Justice System, Crisis in the Justice

System 3 (Aug. 1990). For example, “actual dollars allocated to justice agencies declined in

23 states” in the past year. Id. at 5.

147. Id. at 16.

148. Report of ABA Special Committee on Funding and the Justice System (1992); J.

Michael McWilliams, Crisis in the Courts? Our Justice Deficit, Trial 19 (April 1993).

149. Wall St. J., Mar. 18, 1993, at B6.

150. Federal Judiciary Tries Hand at Raising Money, Nat’l L.J., Mar. 29, 1993, at 5.

151. Id.

152. McWilliams, supra note 148, at 20.

153. Heydebrand & Seron, supra note 138.

154. Kenneth P. Holland, The Twilight of Adversariness: Trends in Civil Justice, in The

Analysis of Judicial Reform 17 (Philip Dubois ed., 1982).

155. Id.

156. Mich. Lawyers Wkly., Jan. 11, 1993, at 1.

157. Hearings on S. 1569, supra note 145, at 318.

158. N.Y. L.J., Aug. 5, 1991, at 2.

159. William Greider, Who Will Tell the People? The Betrayal of American Democracy

(1992).

160. Id.

161. Id.

162. Id.

163. Ruth Bader Ginsburg, A Plea for Legislative Review, 60 S. Cal. L. Rev. 996 (1987).

164. Felix Frankfurter & John Landis, The Business of the Supreme Court: A Study in the

Federal Judicial System (1968).

165. See generally Donald L. Bartlett & James B. Steele, America: What Went Wrong?

(1992); Greider, supra note 159.

166. Bernard Rosen, Holding Government Bureaucracies Accountable 4 (1st ed. 1982).

167. Frankfurter & Landis, supra note 164, at 2.

168. Greider, supra note 159.

169. Id.

170. Joanne Doroshow, The Case for the Civil Jury 2 (1992).

171. Center for Study of Responsive Law, Banding Together: How Check-Offs Will

Revolutionize the Consumer Movement (1983).

172. I am grateful for conversations with Kevin Clermont and Geoffrey Miller.

173. Richard Posner, Economic Analysis of Law 549 (4th ed. 1992).

174. See, e.g., Mark A. Cohen, Explaining Judicial Behavior or What’s

“Unconstitutional” About the Sentencing Commission?, 7 J.L. Econ. & Org. 183, 184

(1991).

175. Judicial Conference of the United States agenda, Sept. 1994.

176. Ralph K. Winter, In Defense of Discovery Reform, 58 Brook. L. Rev. 263, 277

(1992).

177. Id. (arguing that existing pretrial discovery rules are inefficient); Geoffrey P. Miller,

An Economic Analysis of Rule 68, 15 J. Legal Stud. 93 (1986) (concluding that the rule is in-
Endnotes

165

effective in achieving its intended result of encouraging settlements and suggesting a more

efficient rule).

178. Richard Posner, Economic Analysis of Law 550 (4th ed. 1992).

179. Jonathan R. Macey, The Internal and External Costs and Benefits of Stare Decisis,

65 Chi.-Kent L. Rev. 93, 95 (1989).

180. Richard Posner, Economic Analysis of Law 505 (3d ed. 1986).

181. See Jonathan R. Macey & Geoffrey P. Miller, The Canons of Statutory Construction

and Judicial Preferences, 45 Vand. L. Rev. 647, 660 (1992).

182. For descriptions of the magnitude and nature of the explosion in statute making at

the federal level, see Henry J. Friendly, Federal Jurisdiction: A General View 4 (1973) and

Guido Calabresi, A Common Law for the Age of Statutes (1982).

183. Frederick Schauer, Statutory Construction and the Coordinating Function of Plain

Meaning, 1990 Sup. Ct. Rev. 231, 247 (1990).

184. Posner, supra note 178, at 534.

185. Winter, supra note 176, at 263.

186. See Geoffrey P. Miller, Some Agency Problems in Settlement, 16 J. of Legal Stud.

189, 214 (1987).

187. Fed. R. Civ. P. 16(a)(5).

188. Letter from Sam C. Pointer, Jr., chairman, Advisory Committee on Civil Rules, to

Hon. Robert E. Keeton, chairman, Standing Committee on Rules of Practice and Procedure 6,

attach. B (May 1, 1992).

189. Geoffrey P. Miller, An Economic Analysis of Rule 68, 15 J. Legal Stud. 93, 94

(1986).

190. This general rule does not apply where the applicable substantive statute includes

attorney fees as part of costs. Marek v. Chesny, 473 U.S. 1, 9 (1985).

191. Kathryn E. Spier, Pretrial Bargaining and Fee Shifting Mechanisms: A Theoretical

Foundation for Rule 68 (June 1992) (unpublished manuscript).

192. Jeffrey J. Mayer, Prescribing Cooperation: The Mandatory Pretrial Disclosure

Requirement of Proposed Rules 26 and 37 of the Federal Rules of Civil Procedure, 12 Rev.

Litig. 77, 85 (1992).

193. Winter, supra note 176, at 263.

194. Id. at 264. As Deborah Rhode has observed, lawyers engage in a great deal of discovery. In her words, lawyers leave “no stone unturned, provided, of course, they can charge

by the stone.” Deborah Rhode, Ethical Perspectives on Legal Practice, 37 Stan. L. Rev. 589,

635 (1985).

195. Winter, supra note 176, at 277.

196. Id. at 264.

197. David P. Land, Reasonableness and Auditing Legal Fees, N.Y. L.J., Feb. 25, 1993, at

5.

198. Rule 26(b)(2)(iii) does, however, permit a judge to limit discovery where “the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the

needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the litigation ...” Of course a judge is free to decline to invoke this rule when

he or she wants to induce a settlement.
Effects of Legislation on the Workload of the Courts

166

199. Paul Connolly et al., Judicial Controls and the Civil Litigative Process: Discovery 28

(Federal Judicial Center 1978). It should be noted, however, that these 3,114 cases include

prisoner appeals, administrative appeals, and other cases in which discovery would not be

expected.

200. Id. at 51.

201. Winter, supra note 176, at n.17 (discussing how discovery can be used as a “club”

to coerce settlements).

202. Proposed Fed. R. Civ. P. 26(b)(2)(iii). Proposed Amendments to the Federal Rules of

Civil Procedure and the Federal Rules of Evidence, submitted to Standing Committee on

Rules of Practice and Procedure by Advisory Committee on Civil Rules, May 1992.

203. Fed. R. Civ. P. 26(a). It should be noted that the language of this 1993 amendment

permits federal courts to “opt-out” of Fed. R. Civ. P. 26(a) through local rule. As of March

1994, at least thirty-three federal districts had either provisionally, or nonprovisionally, taken

this route, and others were considering it (see Donna Stienstra, Implementation of Disclosure

in the Federal Courts, with Specific Attention to Courts’ Responses to Selected Amendments

to Federal Rule of Civil Procedure 26 (Federal Judicial Center 1994)).

204. Mayer, supra note 192, at 113.

205. Winter, supra note 176, at 267.

206. I am grateful to my colleague Kevin Clermont for this point.

207. Laura A. Kaster & Kenneth A. Wittenberg, Rulemakers Should Be Litigators, Nat’l

L.J., Aug. 17, 1992, at 15.

208. Chevron, 467 U.S. 837 (1984).

209. Cass R. Sunstein, Law and Administration After Chevron, 90 Colum. L. Rev. 2071,

2075 (1990).

210. Chevron, 467 U.S. at 843–45.

211. Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989

Duke L.J. 511, 513–14 (1989) (quoting Marbury v. Madison 5 U.S. (1 Cranch) 137, 177

(1803)).

212. Jonathan R. Macey, Separated Powers and Positive Political Theory: The Tug of

War Over Administrative Agencies, 80 Geo. L.J. 671, 681 (1992).

213. Sunstein, supra note 209, at 2092 (whenever a court “has a firm conviction that an

agency interpretation violates the statute, that interpretation must fail”).

214. Posner, supra note 178, at 580.

215. Id.

216. Id. at 581.

217. Id.

218. Id.

219. Stephen Reinhardt, Too Few Judges, Too Many Cases, A.B.A. J. 52 (Jan. 1993).

220. 488 A.2d 858 (Del. 1985).

221. Jonathan Macey & Geoffrey Miller, Trans Union Reconsidered, 98 Yale L.J. 127,

134 (1988).

222. Id.

223. Id.

224. 457 A.2d 701 (Del. 1983).

225. Id. at n.5.
Endnotes

167

226. I am especially indebted to Leigh Hunt Greenhaw and Emily Field Van Tassel for

their insightful comments and their willingness to offer them on such short notice.

227. For a recent compilation of material relating to statutory interpretation, see

Statutory Interpretation and the Uses of Legislative History: Hearing Before the Subcomm.

on Courts, Intellectual Property, and the Administration of Justice of the House Comm. on

the Judiciary, 101st Cong., 2d Sess. (1990).

228. Federal Courts Study Act, Pub. L. No. 100-702, 102 Stat. 4644 (1988).

229. Larry Kramer, “The One-Eyed Are Kings”: Improving Congress’s Ability to

Regulate the Use of Judicial Resources, 54 Law & Contemp. Probs. 73, 92–93 (Summer

1991) (Attributing to Roscoe Pound, who in turn attributed to Jeremy Bentham, early calls

for establishment of entities akin to law revision commissions).

230. Proceedings of the Federal Courts Study Committee 27–28 (February 3, 1989)

(remarks of Prof. Daniel Meador).

231. Id. at 32.

232. Memorandum from Richard A. Posner to members of the Subcomm. on Role and

Relationships of the Federal Courts Study Committee (Feb. 16, 1989).

233. Memorandum from Larry Kramer to members of the Subcomm. on Role and

Relationships of the Federal Courts Study Committee 6 (Apr. 12, 1989).

234. Id. at 8.

235. Proceedings of the Federal Courts Study Committee 59 (June 5, 1989) (remarks of

Prof. Larry Kramer).

236. Id. at 62.

237. Memorandum from Larry Kramer to members of the Federal Courts Study

Committee 5 (July 21, 1989).

238. Id. at 7.

239. Id. at 6.

240. Proceedings of the Federal Courts Study Committee 74 (July 31, 1989) (transcript).

241. Id. at 77.

242. Id. at 80.

243. Congressman Moorhead was among those who dissented from the committee’s ultimate recommendation that the OJIA be located in the judicial branch—he argued that the

office would be better situated in Congress. Report of the Federal Courts Study Committee

92–93 (1990).

244. Proceedings of the Federal Courts Study Committee 81 (July 31, 1989) (transcript).

245. Id. at 87.

246. Memorandum from Robert W. Feidler to Ralph Mecham (Oct. 30, 1989). This

memorandum was, in effect, submitted in response to a request from Chairman Weis that

Feidler “give us your ideas.” Proceedings of the Federal Courts Study Committee 88 (July 31,

1989).

247. Memorandum from Robert W. Feidler to Ralph Mecham 1 (Oct. 30, 1989).

248. Id. at 2.

249. Id. at 1.

250. Id.

251. Memorandum from William Slate to members of the Federal Courts Study

Committee 6 (Nov. 2, 1989).
Effects of Legislation on the Workload of the Courts

168

252. Report of the Subcomm. on Administration, Management and Structure to the

Federal Courts Study Committee 28–29 (Nov. 15, 1989).

253. Because of the closeness of the October 30, 1989, vote and the absence of four

members, the Posner proposal was included in the tentative draft as a second option. The

second option was rejected at the December 10 , 1989, meeting.

254. Report of the Federal Courts Study Committee, Tentative Draft No. 1 86–87 (Nov.

26–27, 1989).

255. Id.

256. Federal Courts Study Committee Tentative Recommendations for Public Comment

126–27 (Dec. 22, 1989).

257. Letter from Harlington Wood, Jr., to Joseph F. Weis, Jr. (January 9, 1990).

258. Id.

259. Report of the Federal Courts Study Committee 89–93 (1990). The four were

Representative Robert Kastenmeier, former Solicitor General Rex Lee, Representative Carlos

Moorhead, and Judge Richard Posner. Because a number of committee members chose not to

draft or sign dissents from recommendations they opposed in the committee, it is probably

not safe to assume that the final vote on the proposal was eleven to four.

260. Federal Courts Study Committee Working Papers and Subcommittee Reports 138

(July 1, 1990).

261. “[T]he expanded federal effort to reduce drug trafficking has led to a recent surge in

federal criminal trials that is preventing federal judges in major metropolitan areas from

scheduling civil trials, especially civil jury trials, of which there is now a rapidly growing

backlog.” Report of the Federal Courts Study Committee 6 (1990).

262. “The guidelines, we were told again and again, do not give the sentencing judge

clear or adequate authority to adjust sentences in light of all factors that judges and others

regard as pertinent for a just sentence.” Id. at 137.

263. As Chief Judge Abner Mikva was reported to observe, “These are the kinds of drug

cases which are not challenging to your intellect.” Tracy Thompson, Stop Complaining,

Stephens Tells Judges, Wash. Post, June 8, 1991, at Bl.

264. Id.

265. Avern Cohn, A Judge’s View of Congressional Action Affecting the Courts, 54 Law

& Contemp. Probs. 99, 102 (Summer 1991) (identifying the fact that “no federal judge

served on the task force” as among the “various weaknesses” of the task force report).

266. Federal Courts Study Committee Implementation Act and Civil Justice Reform Act:

Hearing on H.R. 5381 and H.R. 3898 Before the Subcomm. on Courts, Intellectual Property,

and the Administration of Justice of the House Comm. on the Judiciary, 101st Cong., 2d

Sess. 384, 391 (1990) (letter from Judge William Hungate to Michael Remington (April 4,

1990)) (“The price of a truly independent judiciary is the occasional appointment of a complete damn fool. Apparently, that cost now appears to be too high. Of course the people,

through their Congress, have the right to remove that independence. It is only important that

they recognize what they are doing. When King John signed Magna Carta, he gave us our

rights, as of old, so now we are free to do as we like, as long as we do what we’re told.”);

431, 432 (letter from Judge G. Thomas Eisele to Representative Robert W. Kastenmeier

(August 23, 1990)) (“The tendency for the Legislative Branch to micro-manage the Judicial

Branch should be resisted by those who truly see the value of an independent judiciary”);
Endnotes

169

434, 435 (letter from Chief Judge Barefoot Sanders to Representative Robert W.

Kastenmeier) (August 28, 1990) (“The effect of Title I is the micro-management of the federal

courts”); see also Avern Cohn, supra note 265, at 100, 103 (charging that Biden’s strategy

reflected a “quite deliberate and . . . successful effort at agenda control,” in support of a

proposal “driven by special interests”); and Ann Pelham, Biden Takes Judiciary to Task,

Legal Times, July 2, 1990, at 7 (“Most judges felt Congress was trying to micro-manage the

judiciary—and said so, often quite bluntly”).

267. The Civil Justice Reform Act of 1990 and the Judicial Improvements Act of 1990:

Hearings on S. 2027 and 2648 Before the Senate Comm. on the Judiciary, 101st Cong., 2d

Sess. 310 (1990) (“Given the over-wrought response that greeted the legislation initially, I do

not find the Conference’s position surprising. Of course, I had hoped that by modifying the

substance of the bill to meet many, many of the concerns of the Conference, I might persuade

them to reexamine their rhetoric. Regrettably, it now appears that the Conference’s objections remain, regardless of the changes in the substance of the bill”).

268. “In a May 21 speech to the Judicial Conference of the D.C. circuit, Mecham spoke

about the way Biden had allocated judgeships with an eye toward getting the bill passed.

‘Virtually every Republican on the Senate Judiciary Committee received an extra judgeship

for his state,’ Mecham told the roomful of several hundred lawyers and judges, who laughed

appreciatively at Mecham’s insight.” Pelham, supra note 266.

269. See, e.g. Avern Cohn, supra note 265 ,at 100.

270. The Civil Justice Reform Act of 1990, supra note 267, at 308.

271. Pelham, supra note 266.

272. Larry Kramer, supra note 229, at 73, 95.

273. See, e.g., 136 Cong. Rec. S. 12117 (daily ed. August 3, 1990) (statement of Senator

Reid, quoting a judicial impact statement prepared by the Administrative Office in support of

the proposition that “[t]he repeal of the Warner amendment will not create a burden for the

courts”).

274. The Civil Justice Reform Act of 1990, supra note 267, at 308–09.

275. S. Rep. No. 331, 102d Cong., 2d Sess. 79 (1992).

276. S. Rep. No. 197, 102d Cong., 1st Sess. 70 (1991).

277. Indeed, with respect to the judiciary’s forecasts in connection with the judgeships

bill, the Violence Against Women Act, and the budget bill, each was defensible on the merits.

See David Cook, Report on Statistics Estimates, Ct Admin. Bull. 6 (March 1993) (responding

to Appropriations Committee concerns).

278. Paul Nejelski, Judicial Impact Statements: Ten Critical Questions We Must Not

Overlook, 66 Judicature 123, 130–31 (Sept./Oct. 1982).

279. Proposals for creation of an office charged with reviewing laws and/or court decisions and recommending revisions include: Henry J. Friendly, The Gap in Lawmaking—

Judges Who Can’t and Legislators Who Won’t, 63 Colum. L. Rev. 787 (1963) (proposing the

creation of a council on a ministry of justice, council of law revision, or its equivalent); Ruth

Bader Ginsburg, A Plea for Legislative Review, 60 S. Cal. L. Rev. 995 (1987) (proposing that

a “Second Look at Laws Committee” be established within each house of Congress); William

E. Cooper, A Proposal for a Congressional Council of Revision, 12 Seton Hall Legis. J. 233

(1989) (proposing a council of revision composed of former judges and legislators); and
Effects of Legislation on the Workload of the Courts

170

Benjamin Cardozo, A Ministry of Justice, 35 Harv. L. Rev. 113 (1921) (proposing the creation of a ministry of justice to review and recommend revisions to laws passed).

Proposals for creation of a legislative “checklist” include: S. 1569, 102d Cong., 1st Sess.

§102 (1991) (proposing that each committee report be accompanied by a “judicial impact

statement” representing that a list of fifteen specified issues had been considered by the

committee); Report of the Federal Courts Study Committee 91–92 (1990) (recommending

that Congress consider a checklist for staff to use in reviewing proposed legislation, with

eighteen suggested list items); and letter from Thomas Boyd, acting assistant attorney general,

to Representative Robert W. Kastenmeier, attach. 8 (April 22, 1988) (communicating the

Reagan administration’s proposed “judicial impact statement” legislation, requiring congressional committees to assess reported legislation with reference to a twelve-item list of considerations).

280. This likewise has been a consistent refrain of commentators interested in court reform issues. Deanell Reece Tacha, Judges and Legislators: Renewing the Relationship, 52

Ohio St. L.J. 279 (1991); J. Clifford Wallace, The Future of the Judiciary: A Proposal, 27

Cal. W. L. Rev. 361 (1991); Shirley S. Abrahamson & Robert L. Hughes, Shall We Dance?

Steps for Legislators and Judges in Statutory Interpretation, 75 Minn. L. Rev. 1045 (1991);

Kramer, supra note 229, at 73; Mark W. Cannon & Warren I. Cikins, Interbranch

Cooperation in Improving the Administration of Justice: A Major Innovation, 38 Wash. &

Lee L. Rev. 1 (1981); and Judges and Legislators: Toward Institutional Comity (Robert

Katzmann ed., 1988).

281. The views and opinions expressed in this paper are solely those of the author and do

not reflect any official views of the Administrative Office of the U.S. Courts or the Judicial

Conference of the United States.

282. See Federal Courts Study Committee, Report of the Federal Courts Study Committee

89 (April 2, 1990).

283. Linda K. Ridge et al., Legislative–Judicial Relations: Seeking a New Partnership

(National Center for State Courts 1992); see also Donna Hunzeker, Legislative–Judicial

Relations: Seeking a New Partnership, National Conference of State Legislatures (July 1990).

284. Keith Boyum & Samuel Krislov, Judicial Impact Statements: What’s Needed, What’s

Possible?, 66 Judicature 139 (Sept./Oct. 1982).

285. Cornelius Kerwin, Justice-Impact Statements and Court Management: And Never

the Twain Shall Meet, in The Analysis of Judicial Reform 171 (Philip Dubois ed., 1982);

Susan M. Olson, Judicial Impact Statements for State Legislation: Why So Little Interest?, 66

Judicature 147 (Sept./Oct. 1982).

286. H. T. Chen & Peter H. Rossi, The Multi-Goal, Theory-Driven Approach to

Evaluation: A Model Linking Basic and Applied Social Science, 59 Soc. Forces 106–22 (Sept.

1980). For an update of this approach, see John S. Brekke, The Model Guided Method for

Monitoring Program Implementation, 11 Evaluation Rev. 281 (June 1987).

287. The Conference of State Court Administrators and the National Center for State

Courts have jointly developed that approach. It is set out in the State Court Caseload

Statistics: Annual Report series and State Court Model Statistical Dictionary 1989.

288. David Neubauer, Judicial Process: Law Courts and Politics in the United States

(1991); Barry Mahoney et al., Changing Times in Trial Courts: Caseflow Management and

Delay Reduction in Urban Trial Courts (National Center for State Courts 1988).
Endnotes

171

289. Commission on Trial Court Performance Standards, Trial Court Performance

Standards with Commentary (National Center for State Courts 1990).

290. Id.; see Standards 2.3, 4.4, and 4.5, pp. 12, 20.

291. Thomas Henderson & Cornelius Kerwin, Structuring Justice: The Implications of

Court Unification Reforms (The National Institute of Justice 1984); Larry Berkson & Susan

Carbon, Court Unification: History, Politics, and Implementation (National Institute of Law

Enforcement and Criminal Justice 1978).

292. Janice T. Munsterman et al., Child Support Guidelines: Facing Modification and

Custody Issues, 15 St. Ct. J. 41 (1991).

293. Joan Jacoby, An Evaluation of the Expedited Drug Case Management Program:

Summary of Results and Findings (Jefferson Institute for Justice Studies 1991).

294. Victor Flango & Craig Boersema, Changes in Federal Diversity Jurisdiction: Effects

on State Court Caseloads, 15 U. Dayton L. Rev. 405 (1990).

295. The views and opinions expressed in this paper are solely those of the author and

not necessarily those of the U.S. General Accounting Office.

296. See, for example, the Federal Sentencing Reporter (Nov.–Dec. 1992). This issue is

devoted to critiques of the reports by the U.S. Sentencing Commission and the U.S. General

Accounting Office regarding the federal sentencing guidelines’ impact on sentencing disparity.

297. William Rhodes, Models of the Criminal Justice System: A Review of Existing

Impact Models (Abt Associates Inc., June 1990).

298. For example, various versions of JUSSIM are now in use in San Diego and Santa

Clara counties, Calif.; Dade County, Fla.; and Montgomery County, Md., among others.

299. 21 U.S.C. § 1501 (repealed), 28 U.S.C. § 509 note (1988).

300. We used number of defendants, rather than cases, as our workload measure because

number of defendants is the only useful measure at the corrections stage and thus the only

useful measure common to all four stages. A case, of course, may include more than one

defendant. According to the Administrative Office of the U.S. Courts, there are an average of

1.4 defendants per federal criminal case and about 1.9 in drug cases.

301. Federal Criminal Justice System: A Model to Estimate System Workload

(GAO/GGD-91-75, April 1991). GAO also developed a model for allocating attorneys

among U.S. attorney offices based in part on weighted workload: U.S. Attorneys: Better

Models Can Reduce Resource Disparities Among Offices (GAO/GGD-91-39, March 1991).

302. Such cases arise from accidents and other driving incidents in federal parks, on federal parkways, or in areas around military bases.

303. The Federal Probation Sentencing and Supervision Information System contains both

sentencing and supervision data.

304. An important element of time is not only calendar time, but also judicial and staff

time spent on each case. The judge and staff time, in turn, is an important element of total

case cost.

305. I do mean actual costs, not the “charges” that hospitals and doctors include on the

patient’s bill.

306. The government almost always incurs both the cost of the investigation and the

principal costs of litigation in criminal cases (even paying for many defendants’ attorneys).

Thus, offender-based tracking systems that include investigative costs can be designed and

maintained, assuming that the same level of government—federal, state/local—incurred the
Effects of Legislation on the Workload of the Courts

172

costs of the investigation. However, it is unlikely that one could have a system that captured

civil case data prior to filing the case in court.

307. For civil cases, these data are generated at the time of initiating an action in federal

district court by the filing attorney. When filing a case in federal court, the attorney must

complete a form (JS-44) that includes coded information on the general nature of the suit and

reference to a precise statutory section and subsection of the U.S. Code that links the case

filing to a relevant cause of action. The clerk of court verifies and transcribes the information

from the JS-44 to a more condensed format (the JS-5), which the clerk transmits to the

Administrative Office.

308. Although the court’s statistical year was shifted three months in 1992 to correspond

to the court’s fiscal year, for consistency all data used in this report are grouped according to

the pre-1992 statistical year—a twelve-month reporting period ending June 30.

309. The Administrative Office’s Guide to Judiciary Policies and Procedures: Statistics

Manual, Vol. XI, Chap. V provides “Instructions for Completing District Court Report

Forms.” The following are the instructions for completing the pertinent sections of the JS-5

Reporting Form for nature of suit code and statutory cause of action:

Nature of Suit: Enter the three-digit statistical code representing the nature of the action

filed. This data is available from the JS-44 Civil Cover Sheet completed by the attorney filing

the case but should be verified by the clerk of court for accuracy. The nature of suit code reported should be consistent with the statutory citations contained in the “Cause” section of

the JS-5 (see below). If more than one nature of suit is applicable, enter the code of the first

listed complaint or most serious complaint, as determined by the clerk of court. (p. 9)

Cause: Enter the U.S. civil statute(s) under which the action is filed, and write a brief

statement of the cause of action. This information must be entered for each case and is available from the JS-44 Civil Cover Sheet completed by the attorney filing the case. The clerk of

court should verify the data for accuracy. For actions transferred into the district pursuant to

Title 28 U.S.C. §1404(a) or 1407, also specify in this section the district from which the action was transferred. (Note: Do not include jurisdiction or venue citations in this item, unless

the case is a diversity action and no other federal statutes apply. Otherwise, include only citations reflecting the nature of the action.) (p. 12)

310. One reason that the findings presented here must be considered preliminary is that it

will be impossible to determine the absolute veracity of this assumption without subsequent,

more labor-intensive work to ascertain whether or not there are identifiable biases between

those filings that do report a cause of action as opposed to those that do not.

311. Free v. United States, 879 F.2d 1535 (7th Cir. 1989).

312. Judge Posner’s decision, as well as concurrences by Cudahy and Coffey, discussed

the magnitude of work imposed on the courts by that prisoners’ small claims provision.

313. An analysis of the data for cases brought under 28 U.S.C. § 2671 in SY 1992, for

example, shows that these filings were listed under twenty-two different NOS-Codes, including suits for personal injury, personal property damage, civil rights, and prisoner petitions. As

a result, it would be virtually impossible to develop any meaningful estimate of the judicial

impact of this statute using NOS-Code data.

314. Of the 660 cases brought under 20 U.S.C. § 1080 in SY 1992, 635 were listed under

NOS-Code 152, 20 under NOS-Code 190 (Other Contract Actions), 3 under NOS-Code 890
Endnotes

173

(Other Statutory Actions), and 2 under NOS-Code 150 (Recovery of Overpayments and

Enforcement of Judgments).

315. Of the 6,146 cases filed under NOS-Code 152 in SY 1992, 3,692 were brought under the purely jurisdictional statute 28 U.S.C. § 1345 (“U.S. Plaintiff”), 1,640 under 20

U.S.C. § 1083 (“Student Loan Information by Eligible Lenders”), 635 under 20 U.S.C.

§ 1080, and the rest under various other statutes.

316. An interesting fact emerged from our investigation of this program. It appears from

telephone interviews of court personnel that the reason these cases were brought under 20

U.S.C. § 1083 (Student Loan Information by Eligible Lenders) as opposed to 20 U.S.C

§ 1080 (Default of Student Under Federal Loan Insurance Program) has to do with a glitch in

a computer software package provided to the contract firms by the Department of Justice

rather than some more portentous shift in litigation strategy or other underlying societal factor.

317. Weights used in our analysis were developed from a subset of cases collected as part

of the District Court Time Study Project that exhibited information on statutory cause of

action listings. This subset contained 4,753 criminal and 4,657 civil cases. These weights represent the average judge time required in cases brought under specific titles and sections of the

U.S. Code. We thank John Shapard of the Center’s Research Division and director of the

District Court Time Study for his assistance in obtaining these data.

318. At the hearings, Judge Abner Mikva expressed this view from the federal bench:

“You would be amazed how often we judges struggle with whether or not we can apply a

remedy or go through to the legislative history to find out whether the Congress intended for

a private litigant to use a particular statute. But civil RICO has been interpreted to mean

. . . that this language in and of itself allows every private litigant to single-handedly go out

and be the Attorney General of the United States and enforce all the other laws of the United

States through the use of civil RICO.” Rico Reform: Hearings on H.R. 2517, H.R. 2943,

H.R. 4892, H.R. 5290, H.R. 5391, and H.R. 5445 Before the Subcomm. on Criminal Justice

of the House Comm. on the Judiciary, 99th Cong., 1st and 2d Sess. 529 (1985–1986)

(testimony of Judge Abner Mikva).