Law Commons^™

In Defense Of (Circuit) Court-Packing, Xiao Wang

Michigan Law Review Online

Proposals to pack the Supreme Court have gained steam recently. Presidential candidate Pete Buttigieg endorsed a court-packing plan at the start of his campaign, and several other candidates also indicated a willingness to consider such a plan, including Senators Elizabeth Warren and Amy Klobuchar. Legal scholars have similarly called upon Congress to increase the size of the Supreme Court, particularly following the heated confirmations of Justices Neil Gorsuch and Brett Kavanaugh. These suggestions for Court reform have only gotten more pronounced with the recent passing of Justice Ruth Bader Ginsburg, the subsequent nomination of Judge Amy Coney Barrett, and the …

"It's Not You, It's Your Caseload": Using Cronic To Solve Indigent Defense Underfunding, Samantha Jaffe

Michigan Law Review

In the United States, defendants in both federal and state prosecutions have the constitutional right to effective assistance of counsel. That right is in jeopardy. In the postconviction setting, the standard for ineffective assistance of counsel is prohibitively high, and Congress has restricted federal habeas review. At trial, severe underfunding for state indigent defense systems has led to low pay, little support, and extreme caseloads—which combine to create conditions where lawyers simply cannot represent clients adequately. Overworked public defenders and contract attorneys represent 80 percent of state felony defendants annually. Three out of four countywide public defender systems and fifteen …

Speedy Trial As A Viable Challenge To Chronic Underfunding In Indigent-Defense Systems, Emily Rose

Michigan Law Review

Across the country, underresourced indigent-defense systems create delays in taking cases to trial at both the state and federal levels. Attempts to increase funding for indigent defense by bringing ineffective assistance of counsel claims have been thwarted by high procedural and substantive hurdles, and consequently these attempts have failed to bring significant change. This Note argues that, because ineffective assistance of counsel litigation is most likely a dead end for system-wide reform, indigent defenders should challenge the constitutionality of underfunding based on the Sixth Amendment guarantee of speedy trial. Existing speedy trial jurisprudence suggests that the overworking and furloughing of …

Fill The Bench And Empty The Docket: Filibuster Reform For District Court Nominations, Jeremy Garson

University of Michigan Journal of Law Reform Caveat

Judges are, without question, vital to our justice system. They interpret, adapt, and apply the law. They resolve disputes for the parties to the case at issue and provide guidance to others in analogous situations. They are the gears that keep the wheels of justice moving. Unfortunately, in the case of our federal courts, many of these gears are missing. Eighty-three of our 874 federal judgeships are vacant, including thirty-four that have been declared “judicial emergencies.” Our Constitution vests the President with the power to nominate federal judges and the Senate with the power to confirm or reject them, and …

Egyptian Civil Justice Process Modernization: A Functional And Systemic Approach, Hiram E. Chodosh, Stephen A. Mayo, Fathi Naguib, Ali El Sadek

Michigan Journal of International Law

To provide helpful assistance to other nations currently in pursuit of civil process reform, this Article introduces a model of civil justice modernization developed through a functional and systemic approach. Addressing the common weaknesses of many other reform efforts, this approach is first motivated by the conviction that process modernization is a necessary component of effective substantive legal reform. Second, in its critical assessment of the problems and its creative recommendations for reform, this Article integrates the design of procedural, institutional, and professional development measures, without requiring large investments of unavailable financial resources. Third, the Article presents a long-term and …

The Case For Appellate Court Revision, Joseph F. Weis Jr.

Michigan Law Review

A Review of Rationing Justice on Appeal: The Problems of the U.S. Courts of Appeals by Thomas E. Baker

Diluting Justice On Appeal?: An Examination Of The Use Of District Court Judges Sitting By Designation On The United States Courts Of Appeals, Richard B. Saphire, Michael E. Solimine

University of Michigan Journal of Law Reform

According to a number of studies and commentators, a serious caseload crisis faces the federal courts. With respect to the federal courts of appeals, some have called for drastic remedial measures. Until Congress responds, the courts of appeals have been forced to adopt a range of coping measures. In this article, Professors Saphire and Solimine examine one of these measures, the utilization of designated district court judges on appellate panels. After discussing the origins and extent of this practice, they identify a number of problems it raises. They argue that extensive and routine utilization of district judges on appellate panels …

Restrictions On Publication And Citation Of Judicial Opinions: A Reassessment, Robert J. Martineau

University of Michigan Journal of Law Reform

In response to the "crisis of volume," state and federal appellate courts have been restricting the opinions they write to those opinions which will: (1) establish a new. rule of law or expand, alter, or modify an existing rule; (2) involve a legal issue of continuing public interest; (3) criticize existing law; or (4) resolve a conflict of authority. All other opinions are limited to brief statements of the reasons for the decision, go unpublished, and generally carry a prohibition against their being cited as precedent. Recently, critics have alleged a number of faults with this practice, including the supposed …

Civil Procedure Reform In Japan, Takeshi Kojima

Michigan Journal of International Law

Delay in court has been a problem common in all eras, both ancient and modern, and to all systems of law, Western and Eastern alike. In Japan, however, the problem is arguably more acute. The average delay between filing and judgment for cases that require at least a minimum level of proof-taking or an evidentiary hearing is 27 months. This deplorable reality has recently led to renewed efforts to tackle the problem of delay in Japan. Two groups that have been particularly important in this effort are two local bar associations and the Tokyo and Osaka district courts. The First …

Appellate Justice Bureaucracy And Scholarship, William M. Richman, William L. Reynolds

University of Michigan Journal of Law Reform

Many of the other Articles in this Symposium demonstrate that a single great piece of legal scholarship can have an enormous impact on the development of legal doctrine. This Article differs in two respects. First, it focuses not on a single seminal work, but rather on a developing literature authored by a large group of scholars. Second, it attempts to assess the impact of that literature not on the growth of legal theory, but on the development of a single legal institution-the United States Courts of Appeals.

The Effectiveness Of Measures To Increase Appellate Court Efficiency And Decision Output, Thomas B. Marvell, Carlisle E. Moody

University of Michigan Journal of Law Reform

This Article will examine the effectiveness of measures commonly employed to increase appellate court productivity. Part I of the Article sets forth some common design problems and explains how the research technique employed in the present study avoids these problems by using a multiple time-series research design. Part II applies this design to state court data. Part II also describes the dependent variable, the number of appeals decided per judge, used in the regression analysis. Part III discusses the results of that analysis-the impact of each change listed above on judicial productivity. The Article, although not advocating the adoption of …

The Civil Jury--An Endangered Species, John Feikens

University of Michigan Journal of Law Reform

George Bernard Shaw, the Irish dramatist and arch gadfly, once said, "The reasonable man adapts himself to the world: the unreasonable one persists in trying to adapt the world to himself. Therefore all progress depends on the unreasonable man. "

With this tantalizing opener, let me say that I will attempt to point out to you my deep concern about the gradual elimination of jury trials in civil cases in our country.

Change In The Availability Of Federal Habeas Corpus: Its Significance For State Prisoners And State Correctional Programs, Franklin J. Remington

Michigan Law Review

Expressions of dissatisfaction with state prisoner use of federal writs of habeas corpus continue. Recently Attorney General Meese was reported as telling the Judicial Conference of the Seventh Circuit: "[M]ost of the writs filed today were frivolous 'recreational activities' [by inmates whom he referred to as 'lawyers in penitentiaries'] designed to harass federal authorities." Referring to the Reagan administration's proposal pending in the United States Senate to restrict habeas corpus, Mr. Meese said the bill "would preserve the great writ for appropriate cases."

Repeated, but as yet unsuccessful, efforts have been made in the Congress to narrow the scope of …

Conserving The Federal Judiciary For A Conservative Agenda?, Samuel Estreicher

Michigan Law Review

A Review of The Federal Courts: Crisis and Reform by Richard A. Posner

Is The Section 1983 Civil Rights Statute Overworked? Expanded Use Of Magistrates--An Alternative To Exhaustion, Brian P. Owensby

University of Michigan Journal of Law Reform

Part I of this Note discusses the history and purpose of section 1983 and identifies the danger unmanaged growth of 1983 suits poses to civil rights. Part II examines several judicial responses to the 1983 caseload problem and concludes that congressional action is more appropriate. Parts III and IV explore two areas of possible legislative action. Part III questions the efficacy of a legislatively imposed requirement that the claimant exhaust state administrative remedies as a prerequisite to a 1983 suit in federal court. Part IV proposes an alternative congressional response to the 1983 caseload problem: a carefully tailored use of …

Colorado's Answer To The Local Rules Problem, William H. Erickson

University of Michigan Journal of Law Reform

This Article examines the checkered history of local rules in the state and federal courts. Part I sketches the development of local rule-making power. Part II focuses on the abuses that have resulted from a nonuniform procedural system. It concludes that the most serious consequence of that abuse - an increase in court costs and delay - has not been addressed adequately by the courts. Part III explores ways in which the local rules problem can be brought under control. Although a number of proposals are discussed, the purpose of this section is to present the approach recently undertaken by …

Appellate Caseload: Meeting The Challenge In Rhode Island, Joseph R. Weisberger

University of Michigan Journal of Law Reform

Two of the most challenging and frustrating problems facing appellate courts in America are increasingly congested dockets and the sluggish pace of litigation. In an effort to combat these problems, the Supreme Court of Rhode Island has recently initiated several procedural techniques for screening and settling criminal and civil cases on appeal. These techniques have proven highly effective and should provide other appellate courts at least a partial answer to the burgeoning appellate caseload.

Oral Argument And Expediting Appeals: A Compatible Combination, Joy A. Chapper

University of Michigan Journal of Law Reform

The purpose of this Article is to explore these issues in light of Sacramento's experience with the expedited appeal procedure. The data presented here are drawn from an evaluation of the first twelve months of the procedure's operation. This evaluation was based on court records of the more than one hundred cases that followed the expedited procedure to completion, in-person interviews with members of the court and court staff, and telephone interviews with participating attorneys. Part I briefly sets out the new procedure and the context in which this procedure was introduced and integrated. Part II discusses the conclusions that …

The Organized Bar: A Catalyst For Court Reform, Paul R.J. Connolly

University of Michigan Journal of Law Reform

This Article theorizes that state and local bar associations can play a vital role in ridding their courts of excessive costs and delay. Theory can become practice, however, only if state and local bars are reorganized to broaden their oversight and lobbying functions, in order to make them more effective vehicles of reform. This Article, then, discusses the role the organized bar can and should play in achieving procedural reform that will reduce the delay and cost of litigation. Part I describes the various stages of the reform process, using the Kentucky experiment as a model, and outlines the contributions …

Court-Annexed Arbitration, A. Leo Levin

University of Michigan Journal of Law Reform

Court-annexed arbitration is utilized more extensively today than ever before. It commands widespread and increasing interest, not only because it serves the litigants well, but also because it offers to beleaguered courts a measure of relief from seriously overburdened dockets. This Article examines the use of court-annexed arbitration as an alternative method of dispute resolution. Part I describes how court-annexed arbitration works and the goals it is designed to achieve. Part II focuses on what the actual experience with court-annexed arbitration has been. Utilizing data from a recent empirical study on court-annexed arbitration by the Federal Judicial Center, this section …

An Appellate Court Dilemma And A Solution Through Subject Matter Organization, Daniel J. Meador

University of Michigan Journal of Law Reform

The recent litigation explosion presents a two-pronged dilemma for American appellate courts. If, on the one hand, the number of appellate judges is not expanded to keep abreast of growing case loads, there is a risk that courts will rely too heavily on professional staff, thereby watering down the decision-making process. If, on the other hand, the number of judges is proportionately increased with the growth in appellate litigation, the number of three-judge decisional units will also increase, thereby threatening predictability and uniformity in the law of the jurisdiction. This Article undertakes to explain that dilemma and to offer a …

Plea Bargaining Reexamined, Lynn M. Mather

Michigan Law Review

A Review of Plea Bargaining: The Experiences of Prosecutors, Judges, and Defense Attorneys by Milton Heumann

A Proposed New Federal Intermediate Appellate Court, Charles R. Haworth, Daniel J. Meador

University of Michigan Journal of Law Reform

This article begins with an analysis of the recent history of federal appellate court reform efforts. It then focuses on three areas of federal litigation - tax law, patent law, and environmental law - in which there are exceptional needs for uniformity in the law but in which uncertainty in legal doctrine is especially pronounced. To make the law more uniform and predictable in these areas, the article proposes the new intermediate appellate court and sets forth in detail the jurisdiction arid structure of this court. The article concludes by pointing out aspects of this proposal that should make it …

The Evolution Of State Supreme Courts, Robert A. Kagan, Bliss Cartwright, Lawrence M. Friedman, Stanton Wheeler

Michigan Law Review

Part I of this Article describes in broad quantitative terms the changing relationship between the caseload of supreme courts and the population of the states in which these courts sit. Part II examines the various means states used to control supreme court caseloads, the political problems involved, and the types of courts that have resulted. Part III presents evidence that changes in court organization in response to caseload pressure are accompanied by changes in the kinds of cases state supreme courts hear, the style of their opinions, and the results of the cases.

Justice On Appeal—One Way Or Many?, Michael E. Smith

University of Michigan Journal of Law Reform

After two centuries of our nation's existence, discussions of federalism are certain to sound familiar. The ground of argument has been worked so thoroughly, there is hardly a patch left unturned. Conventional watchwords suggest the competing interests: adaptability to local circumstances contrasted with efficiencies of scale, circumscribed experimentation contrasted with prevention of forum-shopping, local self-government contrasted with the cosmopolitan perspective. The most that can be done now, absent exceptional insight, is to display these choices in a fresh context.

What follows is yet another variation on the theme. It concerns the propriety, perhaps the desirability, of diversity among the federal …

The Trial Transcript—An Unnecessary Roadblock To Expeditious Appellate Review, William H. Erickson

University of Michigan Journal of Law Reform

A number of innovations have been made in the appellate process which expedite appeals and tend to eliminate the need for a trial transcript. The American Bar Association Standards Relating to Judicial Administration and Standards Relating to Criminal Justice have provided the procedural means for improving our entire system of criminal justice. This article explores some innovations in the appellate process which eliminate the need for a complete record on appeal and discusses the various means to obtain a record of the proceeding in the trial court.

Judicial Administration And Invisible Justice, Mary Murphy Schroeder

University of Michigan Journal of Law Reform

My theme here is the conflict between the visibility of the appellate judge and recent procedural changes designed to cope with the quantum leaps in the numbers and complexity of cases. I will develop that theme, first, by suggesting the ways that three of the major controls on the system, namely the selection, evaluation, and discipline of judges, depend upon the exercise of recognizable and individual judicial responsibility; second, by illustrating how this "imperative" can be undermined if devices intended to cope with increased volume are adopted without vigilance; and finally by pointing up some approaches to permit courts to …

Urban Politics And The Criminal Courts, Milton Heumann

Michigan Law Review

A Review of Urban Politics and the Criminal Courts by Martin A. Levin

Measuring The Duration Of Judicial And Administrative Proceedings: A Comment, David P. Doane

Michigan Law Review

Professors Clark and Merryman propose a useful indirect measure of the duration of litigation whose primary virtue is its ease of computation from published court data. As the authors note, such a measure of duration may be useful to persons involved in judicial administration and to attorneys formulating strategy in litigation, and the legal community should find informative their illustration of the concept with Italian court data. Concluding on a pragmatic note, Professors Clark and Merryman appear to suggest that attorneys, clients, judges, court administrators, and social scientists must ultimately assess the utility of their concept. In making this assessment, …

Measuring The Duration Of Judicial And Administrative Proceedings, David S. Clark, John Henry Merryman

Michigan Law Review

A method of estimating the probable duration of litigation is useful for a variety of purposes. First, the probable duration of a case may, to some extent, determine strategy in litigation since prolonged litigation is often perceived as an appreciable cost to one party and as a benefit to the other. An estimate of the duration of a criminal case, for example, probably influences the respective postures of a defendant and a prosecutor in plea bargaining. Similarly, civil litigants may be able to use an estimate of the probable duration of litigation, together with other factors, in deciding whether to …