Vol. 7 No. 3 (March 1997) pp. 124-126.

THE FEDERAL COURTS: CHALLENGE AND REFORM by Richard A. Posner. Cambridge, Mass.: Harvard University Press, 1996. 413 pp. Cloth $37.50.

Reviewed by Robert A. Carp, Department of Political Science, University of Houston.
 

Posner approaches the topic of the federal courts with an extraordinarily impressive set of credentials which provide him insights into his subject both from within and outside the judicial system. Prior to beginning his service as U.S. appellate judge on the 7th Circuit, Posner held important governmental administrative positions as well as serving as law clerk to Justice William Brennan. While teaching part time at the University of Chicago Law School he has managed to write more than 250 journal articles and book reviews. Thus when this scholar and jurist comments on the current state of the federal courts, he is doing so as a sort of "participant-observer."

The readership audience for THE FEDERAL COURTS is fairly diverse: lawyers in general (but particularly federal court practitioners), judicial reformers; public law scholars in political science economics and psychology; legislators; and citizens who consider themselves to be members of the judicial system’s attentive public. While his writing style is sophisticated, Posner does a good job of avoiding excessive judicial argot and of relegating the finer points of his arguments to footnotes.

In general the author seems to have two general themes for the text. The first is to describe and evaluate the current state of the federal judicial machinery in terms of its problems, strengths, weaknesses, and potential; a second is to provide and evaluate numerous proposals that have been set forth for reforming and improving the working of the U.S. judiciary. Sources for Poser’s work stem from three general realms: (1) theoretical works from the fields of economics, law, and political science; (2) facts, figures, and statistics complied by various private and public agencies, e.g., the Administrative Office of the U.S. Court; and (3) Posner’s keen and vast insights that stem from his day-to-day practice as an appellate court jurist.

The Posner book is divided into four main segments. Part I is more of a nuts and bolts look at the contemporary state of the federal judiciary. Besides reviewing some basic factual information about how the courts are structured and what are the duties of each level, Poser also comments on how the federal judiciary of today differs from that just a generation ago. For example, he notes that more and more federal jurists are coming to the bench with prior judicial experience (much like the European style), and he notes with equal approval that the bench is becoming more and more diverse in terms of gender and ethnicity. As with all chapters, Posner can’t resist making suggestions for reform so that, for example, in discussing judicial salaries, he recommends that judges be given automatic cost-of-living raises and that salaries vary with regional living costs.

Part II of the books is entitled "The Challenge," and here Posner confronts perhaps the most obvious and confounding phenomenon confronting judicial administration in recent decades -- the huge growth in the federal caseload since the 1950’s. Denying that the courts are in a current state of crisis, Posner, draws on both his credentials as a practitioner and a theorist. Among other things, he contends that in real terms, the federal "caseload growth is not inexorable. It has leveled off in the district courts and has been reversed ... in the Supreme Court. Appeals have continued to increase in the federal courts of appeals, but those courts have managed to accommodate them with relatively little fuss. This may be because the average difficulty of appeals has been falling as a consequence of the declining fraction of cases resolved by means or a trial, or because the composition of the docket has shifted toward easier cases." (pp. 84-85)

In these chapters Posner also cautions against easy explanations for the growth in caseload. For example, he argues that increases in court filings are much more a function of the costs (both financial and psychological) of filing a lawsuit than of such simplistic factors as increases in population or wealth.

One key chapter in Part II is entitled "...And Is Streamlined" which explores in part the topic of nonpublication of appellate court opinions. This subject is important for both attorneys in the practice and for judicial behavior researchers. For the former, unpublished opinions are currently a sort of judicial bean bag: judges are urged not to publish nonprecedential opinions and yet few can agree about which opinions will serve as future precedents and which are merely "routine." Unpublished opinions are still part of the corpus juris, but lawyers are not clear about when and how to cite them in court. Judicial behavioralists who publish articles based on published court opinions are open to the criticism that many important cases are found outside the covers of the federal reporters and that therefore studies based only on published opinions are suspect. Poser’s commentary on this topic is helpful and insightful for both the legal profession and for judicial scholars who measure judicial behavior using published court decisions. For example, Poser provides evidence that many important, precedent-making decisions do go unpublished, but he also argues that this varies with the subject matter of the case.

A third area of focus is that of "Incremental Reform" as outlined by Poser. Here the author discusses the pros and cons of five commonly suggested methods for improving the quality of the federal judicial "output," such as limiting or abolishing diversity jurisdiction and encouraging alternative dispute resolution. Again, a key finding revels the sophistication of Posner’s analysis: "A combination of two-way fee shifting and no contingent fees is more attractive than either measure by itself, which may explain why it is the combination that most of the world’s legal systems have chosen. The possible effect of two-way fee shifting in increasing the amount of litigation is sure to be offset by forbidding contingent fees, but the shifting buffers the effect of forbidding them by providing an alternative method of financing solid cases." (p. 243)

In a second chapter in Part III Posner expresses reservations against over-specialization in appellate courts, arguing inter alia that judicial specialization could reduce the "cross-pollination of legal ideas" which Posner believes is important for quality judicial decision making.

In a final collection of three chapters the author explores "Fundamental Reform" of the judicial system , and for the most part he suggests that TRULY fundamental reforms are not warranted. For example, to the oft-made suggestion that much federal business should be reallocated to the state courts, Posner retorts that "a rigorous application of the principles of federalism would also dictate the reassigning of some, maybe a great many, cases from state courts to federal courts." (p. 303) In other words, let’s go slow in our attempts at reform and avoid simple-minded "quick fixes."

Another admirable quality about Posner’s book is its honestly and frankness. For example, unlike many books written by practitioners, his is by no means a litany about how judges are overworked an underpaid. He argues more than once that judges are for the most part paid quite amply for the services they render and that if judges are working hard now compared with their counterparts in the 1950’s it is primarily because federal jurists of four decades ago were UNDEREMPLOYED. Also, while respectful of his fellow jurists, Poser does not hesitate to point out numerous shortcomings and inefficiencies of those who administer the federal judicial machine.

Although parts of THE FEDERAL COURTS can be tedious and occasionally the myriad of charts, tables, and statistics can be a bit numbing, still the text is really very well composed and carries meaningful insights for both legal practitioners and academicians in the public law realms.


Copyright 1997