Wednesday, December 3, 2008
Nancy Levitt at the University of Missouri School of Law has authored a new article questioning whether we should let administrative concerns, like docket overcrowding, guide the use of doctrines like abstention, preclusion, and summary judgment, which let our federal courts avoid making decisions.
The abstract explains:
The quantity of litigation in the federal courts has reached unprecedented heights. While this 'crisis of volume' has attracted the attention of legislators and scholars, the judiciary has been left to divine self-help measures to reduce litigants' use of the federal courts. The federal bench that must manage this caseload explosion includes a cadre of recently appointed federal judges. Many of these judges embrace the New Federalism, an initiative to shift governmental power and responsibility back to the states.
This article posits that the combination of judicial overload and injudicious federalism is operating to shunt certain classes of litigants away from federal courts. New procedural and substantive theories are being created to restrict federal jurisdiction. Federal courts are increasingly using the doctrines of preclusion, preemption, abstention and remand to shuttle cases or decision-making authority back to state courts. Complementing this procedural routing of cases is an expansion of summary procedures and a dramatic reduction in the scope of substantive constitutional rights.
This article questions the propriety of the judiciary's use of administrability concerns in the formulation of jurisdictional theories. While court efficiency appears to be a deserving goal, the current method of its implementation is through a reduction of court access to particular classes of litigants. The article analyzes the concept of administrability and posits that administrative efficiency is actually a value-laden argument for selecting which litigants should be permitted access to federal courts.
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You can download the whole article here.--Counseller