Demand and Supply Trends in Federal and State Courts over the Last Half Century
Posner, Richard A., Journal of Appellate Practice and Process
I have been interested in judicial administration for many years--since long before I was a judge--and I have been a judge for twenty-four years, all on the Seventh Circuit, and so I have experienced what I shall be talking about. I will offer some reflections based on that experience, but this is primarily a statistical study. I refer you to my book for greater detail on points sketchily covered here. (1) though the book is already somewhat dated.
My discussion is keyed to a series of tables. Table 1 is a time series of cases filed in federal district courts and Table 2 is the same but for filings in state trial courts, this time series being abbreviated because the data are unavailable for the period before 1987. Note in Table 1 the inflection point around 1960 for the federal district courts, which initiates a huge growth that continues to the mid-1980s, with little growth since then. (In contrast, the caseload of the state trial courts has been growing uninterruptedly since the first data point, 1987.) Skipping ahead to Table 5, notice how easily the growth has been accommodated by the addition of federal judges, as a result of which the average caseload per district judge has not increased significantly. District judges and other first-instance judges can be added with little difficulty to absorb increases in caseload because there is no coordination problem; the judges are not a collective rulemaking body like appellate judges.
[TABLES 1-2 & 5 OMITTED]
But this raises a question: Why the vanishing-trials phenomenon depicted in Table 8, that is, the sharp decline in the percentage of cases that are resolved by judgment after trial? That sounds like an adaptation to heavier caseloads, yet caseloads per district judge aren't significantly heavier.
[TABLE 8 OMITTED]
Tables 3 and 4 are parallel to Tables 1 and 2 but their statistics are for federal and state appellate rather than trial courts. Notice the huge increase in the appeal rate (2) in the federal system, mysteriously coupled with an apparent fall in the appeal rate in the state system. A comparison with Table 2 reveals that the increase in the number of state-court appeals has been less than that in the number of cases at the trial-court level. In fact the number of appeals has been decreasing recently; but a limitation of the data, of course, is that they begin only in 1987.
[TABLES 3-4 OMITTED]
The steep increase in the federal appeal rate is a considerable puzzle only slightly explained by the increase in the percentage of prisoner cases (both habeas corpus and civil rights), as shown in Table 7. One possibility is that with more judges there is greater uncertainty about the outcome of an appeal, and uncertainty in outcome is a big factor in generating appeals. Another possibility is the vanishing-trials phenomenon: There is a fuller consideration of the issues at the trial-court level when there is a trial, and that greater consideration should reduce uncertainty about the merits of the parties' claims and therefore about the likely outcome of an appeal. Also, there is greater appellate reluctance to upset a judgment after a trial; the judges tend to feel that the loser had his shot. Knowing this, the loser is less likely to appeal.
[TABLE 7 OMITTED]
Table 6 depicts changes in the federal appellate caseload per judge. Because adding appellate judges to match caseload increase creates problems of increased paperwork, of coordination, and of coherence, it is resisted; and with the increase in the number of appellate judges thus lagging the increase in appellate caseload, one observes the dramatic increase in federal appellate caseloads per judge that is shown in this table.
[TABLE 6 OMITTED]
Yet the federal courts of appeals appear to have accommodated the steep increase in caseload per judge relatively painlessly. …