Saturday, January 3, 2015

From Pneumatics to Tortoises: The Chief Justice's 2014 Year-End Report

Chief Justice John Roberts once suggested that legal scholarship was not helpful to the bar, inventing a humorous parody of a law review article about "the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria."  I find his 2014 Year-End Report on the Federal Judiciary only slightly more practical than the fictional article. 

In a report almost entirely devoted to the federal courts' plodding adoption of technological advances, the Chief Justice began with a lengthy description of the Court's 1935 installation of a pneumatic tube system.  He then praised the courts' use of "computer-assisted legal research" and the CM/ECF electronic filing system as though these were new developments. 

Finally, he announced the Supreme Court's anticipated 2016 rollout of "its own electronic filing system," which will make "all filings at the Court . . . available to the legal community and the public without cost on the Court's website."  However, as several commentators noted, this newfangled phenomenon has already been a reality for years through SCOTUSBlog and The American Bar Association.

Observers from The Washington Post to CBS News criticized the Chief Justice's failure, in his discussion of technology, to mention the clamor to allow video cameras (or even still photos) in the Supreme Court.  The Wall Street Journal reports that even the ranking Republican member of the Senate Judiciary Committee, Iowa Senator Chuck Grassley, said "the courts have yet to embrace the one technology that the founders would likely have advocated for--cameras in the courtroom.”

What else is going on in the federal courts?  Not much, according to the report.  Filings decreased in the Supreme Court, the federal courts of appeal, and the bankruptcy courts.  Filings for criminal defendants in the districts courts decreased also. 

In fact, only civil case filings in the district courts nominally increased by 4% to 295,310.  Diversity filings increased 13%, "mainly because of growth in personal injury and product liability filings."  The Chief Justice doesn't say it, but those are typically cases that are subjected to Multidistrict Litigation (MDL). 

According to the MDL Panel's statistical analysis for fiscal 2014, 53,103 civil cases in 2014 were subjected to MDL proceedings.  In fact, there has been a steady rise in the number of cases subjected to MDL proceedings for over 25 years.

In contrast to the almost-meaningless number of "filings" that end up in MDL, there are only 314 pending MDL "litigations," and 46 of them were centralized in fiscal year 2014.  That means that what counts for official purposes as around 50,000 cases boiled down to 46 "litigations."  So it's not really clear that civil filings have increased, either.

Of course, it is unrealistic to expect the Year-End Report of the Chief Justice to explain this.  The 2012 Year-End Report spoke raptly of the U.S.S. Constitution and the War of 1812.  The 2013 Year-End report wistfully referenced A Christmas Carol and It's A Wonderful Life in connection with Congress' "sequester" of funds that year.

This year, the Chief Justice closed with a reference to the "sturdy bronze tortoises" at the bases of "the Court's exterior lampposts," "symbolizing the judiciary's commitment to constant but deliberate progress in the cause of justice."  Hmm.  I wonder if he's read The Case Against the Supreme Court by Erwin Chemerinsky.

 

https://lawprofessors.typepad.com/civpro/2015/01/from-pneumatics-to-tortoises-the-chief-justices-2014-year-end-report.html

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