Induced Litigation

Article excerpt

More judges, more courthouses, more funding.

- Judge Stephen Reinhard!, U.S. Court of Appeals for the Ninth Circuit1

[T]he federal courts have functioned through wars, natural disasters, and terrorist attacks. During times such as these, the role of the courts becomes even more important in order to enforce the rule of law. To continue functioning effectively and efficiently, however, the courts must be appropriately staffed. This means that necessary judgeships must be created and judicial vacancies must be timely filled with well-qualified candidates.

-Chief justice William Rehnquist, U.S. Supreme Court2

We need, in addition to a little greed, more seats for judges

And we can't get em, unless the Congress budges.

For a decade they 've not acted on the courts of appeals,

Ignoring all my suggested deals.

Today, Circuits one, two and nine,

Have more business than judges to opine.

Take the Ninth Circuit, where business has doubled

It 's seventeen years since Congress could be troubled.

The wheels of justice are going to soon grind to a halt,

If Congress doesn '(get to work, it will be its fault.

-John Dean, former White House Counsel3

INTRODUCTION

If "justice delayed" is "justice denied,"4 justice is often denied in American courts. Delay in the courts is a "ceaseless and unremitting problem of modern civil justice"5 that "has an irreparable effect on both plaintiffs and defendants."6

To combat this seemingly intractable problem, judges and court administrators routinely clamor for additional judicial resources to enable them to manage their dockets more "effectively and efficiently."7 By building new courthouses and adding new judgeships, a court should be able to manage its caseload more efficiently. Trial judges should be able to hold motion hearings, host settlement conferences, and conduct trials in a timely fashion; appellate judges should be able to review briefs, hear oral arguments, and issue opinions expeditiously; and the crippling delay that often hobbles litigants and lawyers should give way to the speedy (or at least speedier) resolution of disputes.

But will it?

Intuitively, it seems obvious-even mathematically so-that a court will manage its docket more efficiently if it acquires additional judicial resources. Imagine, for example, a court in which 1100 cases are filed per year. Suppose in Year One that the court has ten judges who collectively resolve 1000 cases (100 per judge), leaving a backlog of 100 cases. Now suppose in Year Two that this court adds a courtroom and fills it with two additional judges. Populated with twelve judges, this court should now be able to resolve 1200 cases, eliminate its backlog, and have unused capacity (unless, of course, the two new judges are unable to process the existing caseload as quickly as their more experienced colleagues).

Although this account of adjudication is intuitively compelling, it might just be wrong. This account assumes "justice supply" and "justice demand" are unrelated-that is, it assumes an increase in the supply of ju dicial resources will not have any impact on the demand for justice because litigation demand is exogenous to its supply. In fact, however, researchers from a rather unlikely place-transportation economics-have given us reason to question this "justice exogeneity assumption." Transportation economists (along with mathematicians, population scientists, operations researchers, and civil engineers) have demonstrated that when governments attempt to meet traffic demand by building new roads or adding new lanes to existing roads, traffic often increases. Called "induced traffic," the basic idea is that an increase in the supply of roads often leads to an increase in demand among the citizenry to drive on those roads.

This Essay relies on this "induced traffic" phenomenon to develop the argument that an increase in the supply of courts or judges may lead to an increase in demand for adjudication. …

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