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Sunday, January 01, 2017

Ode to a District Judge

The Chief Justice's 2016 Year-End Report on the Federal Judiciary is an extend paean to federal district judges and the yeoman work they do as judges, administrators, and managers,* particularly in working with the 2015 discovery amendments and being more actively engaged in managing dockets and individual cases. As I did last year, I will assign the report for the first day of Civ Pro next week, because it provides a nice overview of the focus of that class.

[*] And lumberjacks. As in a "lumberjack saves time when he takes the time to sharpen his ax," just as district judges save time when they are more engaged in case management. As I say, he cannot help himself.

A couple notable omissions. Roberts mentions active and senior judges, but not magistrates, who in many districts deal with discovery and case management, at least on the first pass. The Report thus downplays the extent to which much of this important work is delegated to judicial officers lacking Article III protections, with all the concerns that might raise. Similarly, it mentions settlement as a benefit of skillful exercise of docket administration and case management, but does not mention that this often goes through ADR processes, again through bodies lacking Article III protections. Finally, the Report's tone of respect for the work of trial-court judges stands in stark contrast to the late Justice Scalia's question during oral argument in Iqbal. In challenging the argument that careful case management and control over discovery was the better alternative to a heightened pleading standard, Scalia said "well, that's lovely. The ability of the Attorney General and the Director of the FBI to do their jobs without having to litigate personal liability is dependent on the discretionary decision of a single district judge." The last two Annual Reports reflect a very different attitude towards the work of district judges. Of course, one could read this (as some did the 2015 Report) as Roberts nudging district court judges to his preferred exercise of discretion--more restrictive discovery and more early case resolution.

Speaking of Justice Scalia, it is interesting that Roberts did not mention his death and the political games surrounding that vacancy. It seems that Roberts is not going to follow the paths of Chief Justices Taft or Hughes in jumping into expressly political fights, even where the work and functioning of the Court is implicated by the actions of the other branches.

Posted by Howard Wasserman on January 1, 2017 at 01:39 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink


Given the Chief's focus on the "district judge’s skillful exercise of docket administration and case
management," I suppose another notable omission is the rise of organized litigation in our federal courts. When I last checked, 37 percent of the federal court’s entire civil caseload proceeded in multi-district litigation, but removing prisoner and social security cases, that number rises to 45.6 percent. Elizabeth C. Burch, Monopolies in Multidistrict Litigation, Vand. L. Rev. (forthcoming 2017), available at ssrn.com/abstract=2768171; Judicial Panel on Multidistrict Litigation, 2015 Year-End Report x, xi (2015).
Throw in appeals from the nearly 1.8 million cases pending in administrative adjudication, the majority of civil cases in our federal system arise out of some form of specialized or organized litigation.

Posted by: Adam Zimmerman | Jan 3, 2017 2:33:23 PM

Does a reader of the report realize that Justice Sotomayor was a district court judge? What is with the use of the "generic" pronoun "he" in the report about judges particularly in respect to this? Anyway, he or she is a judge, and that's okay. (h/t Monty Python). As to political fights, a bland reference to the importance of filling vacancies here would be appreciated. OTOH, he probably knows many vacancies will remarkably now be filled rather quickly.

Posted by: Joe | Jan 1, 2017 6:49:32 PM

I was struck by the Chief's reference to the skilled district judge's role in winnowing the case down to a small number of issues for ultimate determination. It sounded to my ears a bit like a celebration of common law pleading.

Posted by: Jim Pfander | Jan 1, 2017 6:30:26 PM

I suppose we can now expect a lot of law review articles insisting that the Chief Justice misrepresented the role of a judge when he implicitly analogized being a judge to being a lumberjack.

Posted by: Orin Kerr | Jan 1, 2017 4:28:45 PM

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