History, Jurisdiction, and the Federal Courts: Changing Contexts, Selective Memories, and Limited Imagination

Abstract

A good deal of discussion, from a variety of vantage points, addresses the need to "reform" (a word translated in a myriad of ways) the federal courts. But commonplace predicates in this discussion are problematic because many of them fail to take into account how much the context has changed. First, the often-invoked description of the federal courts as comprised of a three-tiered pyramid of courts fails to capture the sprawling structure into which the federal judicial system, consisting of courts, agencies, and private-affiliated decision makers, has evolved. Second, that description does not comprehend the large-scale, aggregate litigations to which judges now have to respond. Third, the nature of the decision making process itself has been altered; the pretrial phase at the trial level has taken on greater importance, and alternative dispute resolution has become a part of both trial and appellate court processes. A fourth difficulty is that the premise of state and federal courts as bounded and distinct is being undermined in practice; judges and lawyers are inventing ways to join the systems together under the rubric of what is now termed judicial federalism. Yet another limit comes from lacunae about information on current use of the federal courts.