Brigham Young University Law Review, Vol. 1991, No. 2 (1991), pp. 923-957


No doubt some reform of the federal courts is essential if they are to cope with the proliferation of litigation over the past thirty years and the resulting "congestion, delay, expense, and expansion" in the federal courts. While the problem may not amount to an "impending crisis", the burgeoning caseload surely poses a threat, at least in the long run, to the ability of the federal courts to function effectively. The hard question is not whether something should be done, but what to do about it. There is no shortage of interesting ideas. Some of the ideas that clamor for attention are proposals for specialized courts, new layers of federal appellate review, rethinking the scope of federal jurisdiction, an expanded role for United State Magistrates, and alternative dispute resolution techniques. The pros and cons of these and other innovations turn largely on our response to a more fundamental question: Is it better to expand the federal judiciary or to cut its workload? Of these two broad alternatives, the Federal Courts Study Committee squarely prefers limits on federal jurisdiction over large increases in the number of federal judges. I believe the Committee has made the wrong choice. While neither route is an altogether satisfactory solution to the caseload problem, an expanded federal court system is less objectionable than fencing claims out of the federal courts. This article raises three objections to the Committee's premise that it is necessary to maintain an elite federal judiciary. First, the Committee defines the problem of setting the scope of federal jurisdiction too narrowly, focusing almost exclusively on the congestion in the federal courts and ignoring the impact of its solution on other worthy goals. The issue that should be posed is not whether the current system is wholly satisfactory, but whether the costs of reform are worth the benefits, all things considered. Second, an analysis of the costs and benefits of maintaining a federal judicial elite casts substantial doubt on the Committee's premise that greatly enlarging the federal judiciary is an unacceptable alternative. Third, the Committee altogether ignores the substantive dimension of jurisdictional reform. The principles underlying the Committee's proposals, if not the current proposals themselves, may have far-ranging impact on substantive rights and obligations. Some groups of litigants will lose litigating advantages they now hold, and the desirability of the recommendations depends, at least in part, on whether we think the substantive burdens of reform are fairly distributed.