A Country Without Courts:

Doing More with Less in Twenty-First

Century Federal Courts
CAROLYN A. DUBAY*

INTRODUCTION

s in any business operation in a climate of fiscal austerity, there is a

current push to find ways to measure productivity in our nations
federal court system. Metrics are an important tool to gauge
efficiency and maintain judicial accountability; consequently, they play a
prominent role in current federal judicial administration. On the other
hand, developing official measures of the quality of judging remain as
elusive as defining the characteristics of a good judge (beyond the typical
identifiers of fair, impartial, and well-qualified). While informal
evaluations of federal judges exist through various survey mechanisms, 1
neither Congress nor the federal judiciary has yet to adopt any formal
system to evaluate federal judicial performance other than the Civil Justice
Reform Act of 1990 (CJRA), which measures disposition times of civil
cases.2 In recent years, however, proposals have emerged in the academic
community that attempt to set new benchmarks for measuring federal
judicial performance, such as time spent in court adjudicating cases3 or the
frequency of judicial opinion citations.4
However judicial performance is to be evaluated, policy-makers
(whether political or judicial) must adapt proposed metrics to the real
challenge facing federal court productivity today: doing more with less.
The question is naturally more what? There are the obvious pressures
* Assistant Professor, Charlotte School of Law; B.A, Duke University (1991); J.D., Fordham
University School of Law (1995); L.L.M., Georgetown University Law Center (2010).
1 For example, the New Jersey Law Journal conducts a regular survey of federal court
practitioners about the quality of federal judges in the District of New Jersey. See N.J. Federal
Court Judicial Survey, N.J. L.J. (Oct. 14, 2013), available at http://www.law.com/jsp/nj/
PubArticleNJ.jsp?id=1202623406693&slreturn=20131131125630.
2

See 28 U.S.C. 47182 (2006).

Hon. William G. Young & Jordan M. Singer, Bench Presence: Toward a More Complete Model
of Federal District Court Productivity, 118 PENN. ST. L. REV. 55, 58 (2013).
4 Cf. David F. Levi & Mitu Gulati, Judging Measures, 77 UMKC L. REV. 381, 40102 (2008)
(discussing scholarship seeking to rank individual judge performance).
3

531

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that population growth and burgeoning caseloads put on all judges, state
and federal. Alongside growing dockets, there is constant demand for
judges to manage civil litigation expeditiously, fairly, and cost-effectively,
while prioritizing criminal cases. Judges and court personnel are expected
to spend more time attending trainings in substantive law, procedural
rules, judicial administration, and technology. From electronic case
management to new reporting requirements to substantive and procedural
legal changes, judges and court personnel are continually asked to learn
more, adapt more, develop new operational plans, and manage their local
court units.
While demands on judicial resources are increasing, the federal courts
must accomplish these tasks with less. As a result of budget concerns
and bitter partisanship on Capitol Hill, federal courts today are faced with
fewer resources than necessary to accomplish their constitutional duties to
decide cases or controversies under Article III of the Constitution.5
Shrinking budgets, the inability to fill existing judicial vacancies (or to
create new judgeships), stagnant salaries, courthouse closures, and the
instability and unpredictability of federal legislative support for the
judiciary all point to a collision course between the more and the less.6
To address the reality of judicial politics and policy, and to develop
practical metrics that quantify judicial performance, this Article suggests
an analytical framework for evaluating future federal judicial performance
measurements. Importantly, because any performance metrics adopted
will naturally tend to incentivize certain judicial behaviors, proposed
metrics should consider two important issues: (1) the extent to which the
proposed metric advances the prudential and constitutional goals of
effective federal court adjudication; and (2) the impact of the proposed
metric on judicial resources in the context of aggressive cost containment
and dwindling judicial resources.
To provide substance and background to these considerations, Part I of
this Article begins with an overview of the historical and ongoing obstacles
to federal court productivityparticularly the growing number of federal
court cases. With these difficulties in mind, Part I also summarizes the
traditional approaches politicians and judicial policy-makers have adopted
to combat these problems and improve overall federal court productivity
and efficiency. Part II of this Article discusses the emerging debate on the
role of judicial performance measurements to improve the administration
of justice in the federal system. In this regard, judicial performance is
currently measured only in a way that is consistent with the prudential
goals of expeditious resolution of civil and criminal cases. Metrics to assess
5
6

See U.S. CONST. art. III, 2.

See infra Part III.

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judicial performance, however, must also take into account the

constitutional role of the federal courts as courts of limited jurisdiction,
albeit with an extraordinarily powerful role in ensuring adequate checks
and balances and securing public confidence in the rule of law. Part III then
urges that new metrics for evaluating federal judicial performance must
take into account not only the prudential and constitutional goals of federal
court adjudication, but the impact of new incentivized behaviors on scarce
judicial resources in the framework of the more with less reality.

ANALYSIS
I.

Traditional Solutions to Improving Federal Court Productivity

To quote Roscoe Pounds famous 1906 speech before the American Bar
Association, [d]issatisfaction with the administration of justice is as old as
law.7 With respect to the federal courts, debate about the appropriate size,
structure, and role of the judiciary has existed since it was formally
established in the Judiciary Act of 1789.8 One of the most significant
concerns (in the past and today) remains constant: the impact of delays in
case processing.9 Indeed, delay implicates a host of issues that threaten
public confidence in the rule of law; it threatens access to justice, facilitates
litigation abuses, and leads to skyrocketing legal costs. As a consequence,
judicial policy-makers and federal lawmakers tend to focus their efforts on
increasing efficiency through legal, structural, procedural, and regulatory
reforms.
While there are many causes of delay in each individual case, one of
the key concerns in federal judicial administration over the last century has
been how to deal with the ever-increasing workload of the courts.
Congress role in federalizing many crimes and creating new federal civil
claims, as well as overall improved access to justice, have brought more
cases into the federal courts than population growth alone would suggest. 10
7 ROSCOE POUND, The Causes of Popular Dissatisfaction with the Administration of Justice, in
NATIONAL CONFERENCE ON THE CAUSES OF POPULAR DISSATISFACTION WITH THE
ADMINISTRATION OF JUSTICE 19 (1976).
8 See Judiciary Act, ch. 20, 1 Stat. 73 (1789). For an excellent history of the creation of the
federal court system, see generally RUSSELL R. WHEELER & CYNTHIA HARRISON, FED. JUDICIAL
CTR. CREATING THE FEDERAL JUDICIAL SYSTEM (3d ed. 2005).
9 See WHEELER & HARRISON, supra note 8, at 1216 (discussing developments in federal
court structure to deal with backlog and delay).
10 See Martha J. Dragich, Once a Century: Time for a Structural Overhaul of the Federal Courts,
1996 WIS. L. REV. 11, 25 n.73 (1996); see also WILLIAM W. SCHWARZER & RUSSELL R. WHEELER,
FED. JUDICIAL CTR., ON THE FEDERALIZATION OF THE ADMINISTRATION OF CIVIL AND CRIMINAL
JUSTICE 3 (1994), available at http://www.fjc.gov/public/pdf.nsf/lookup/fedadmcc.pdf
(discussing trends in increased federal court filings). But see Susan R. Klein & Ingrid B.

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As a result, federal court judges have historically laid the problem of

excessive workloads at the feet of Congress. For example, in 1922, Chief
Justice Taft addressed the American Bar Association and commented that
federal court workloads grew because of the tendency of Congress toward
wider regulation of matters plainly within the federal power which it had
not been thought wise theretofore to subject to Federal control.11 In
criminal cases in particular, the 1980s war on drugs increased caseloads by
federalizing many local drug crimes.12 In his 1991 year-end report, Chief
Justice Rehnquist commented that Congress could address the
overburdening of the federal court system by limiting federal jurisdiction
to cases where important national interests predominate rather than
continuing to create new federal causes of action.13
Rather than restricting the scope of federal jurisdiction, judicial policymakers have relied on several solutions to deal with the delay from
increased caseloads. First and foremost, judgeship creation and filling
existing judicial vacancies are seen as critical components in maintaining
the workload of individual judges.14 Even so, no new permanent federal
appellate judgeships and only thirty-one permanent federal district court
judgeships have been created since 1990.15 In 2012, the Chief Justice, in his
year-end report, urged the appointment of federal judges to fill the twentyseven judicial vacancies considered judicial emergencies.16 Most recently,
in 2013, Judge Timothy Tymkovich of the Tenth Circuit, Chair of the
Judicial Conference Committee on Judicial Resources, testified before the
Senate Judiciary Committee Subcommittee on Bankruptcy and the Courts
that the federal judiciary recommended the establishment of ninety-one
new Article III judgeships, as well as the transition of eight temporary

Grobey, Debunking Claims of Over-Federalization of Criminal Law, 62 EMORY L.J. 1, 17 (2012)

(attributing increases in federal criminal cases to population growth and increased
enforcement).
11 See SCHUWARZER & WHEELER, supra note 10, at 7.
12 See Charles Geyh, Overcoming the Competence/Credibility Paradox in Judicial Impact
Assessment: The Need for an Independent Office of Interbranch Relations, in CONFERENCE ON
ASSESSING THE EFFECTS OF LEGISLATION ON THE WORKLOAD OF THE COURTS 79, 87 (A. Fletcher
Mangum ed., 1995), available at http://www.fjc.gov/public/pdf.nsf/lookup/efflegis.pdf/$file/
efflegis.pdf.
13 C.J. WILLIAM H. REHNQUIST, 1991 YEAR-END REPORT ON THE FEDERAL JUDICIARY 34
(1991) (on file with author).
14

See SCHWARZER & WHEELER, supra note 10, at 10.

See U.S. COURTS, AUTHORIZED JUDGESHIPS 7 (2012), available at http://www.uscourts.gov/
JudgesAndJudgeships/viewer.aspx?doc=/uscourts/JudgesJudgeships/docs/all-judgeships.pdf.
16 C.J. JOHN G. ROBERTS, JR., 2012 YEAR-END REPORT ON THE FEDERAL JUDICIARY 9 (2012),
available at http://www.supremecourt.gov/publicinfo/year-end/2012year-endreport.pdf.
15

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judgeships to permanent status.17 According to Judge Tymkovichs

testimony, new district court judgeships are needed in twenty-eight district
courts where caseloads exceed 500 weighted filings per judgeship and new
appellate court judgeships are needed in certain circuits where caseloads
average more than 700 cases per panel.18
Adding judgeships as a solution to the problem of federal court
productivity is not without its critics. As Justice Scalia has argued,
increasing the number of life-tenured Article III judges aggravates the
problem of image, prestige and (ultimately) quality of the federal bench.19
Similarly, Chief Justice Rehnquist warned that more than 1,000 authorized
Article III judgeships would decrease the quality of the federal bench and
make the federal courts too large to manage efficiently.20 In response, the
federal judiciary considered placing a moratorium on the number of
federal judges in the early 1990s based on comments in the 1990 Federal
Court Study Committee Report.21 However, at its September 1990 meeting,
the Judicial Conference of the United States endorsed only the goal of
maintaining a small and limited federal judiciary without a specific outer
limit on the number of authorized judgeships.22
Beyond the call for more judges to improve judicial performance, the
federal judiciary has invested significant resources in providing more
training and technology to promote efficient and effective case
management. This effort came largely in response to Congress demand in
the CJRA that federal judges take a more active role in managing civil
litigation, including more control over discovery and improved
communication with counsel during the pretrial process.23 In implementing
this provision, the Federal Judicial Center published the Manual for
Litigation Management and Cost and Delay Reduction in 1992,24 and urged that
while effective case management would address prudential concerns about
the speed and cost of civil litigation, it would improve the quality and
fairness of civil adjudication in the federal system overall.25 Like all
17 Caseload Increases Stress Need for New Federal Judgeships, THIRD BRANCH NEWS (Sept. 10,
2013), http://news.uscourts.gov/caseload-increases-stress-need-new-federal-judgeships.
18

Id.
GORDON BERMANT ET AL., FED. JUDICIAL CTR., IMPOSING A MORATORIUM ON THE NUMBER
OF FEDERAL JUDGES: ANALYSIS OF ARGUMENTS AND IMPLICATIONS 11 (1993).
19

20

Id. at 13.
See id.
22 Id. at 1415.
23 See 28 U.S.C. 473 (2006).
24 See FED. JUDICIAL CTR., MANUAL FOR LITIGATION MANAGEMENT AND COST AND DELAY
REDUCTION 1 (1992).
25 Id. at 2 (While [effective case management] will help cases move to resolution more
expeditiously, it should not be viewed as simply a docket-clearing device. Its primary purpose
21

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solutions to the problem of growing caseloads, the focus on case

management engendered some criticism. For example, Chief Justice
Rehnquist asserted that bureaucratization and increased management
structures will leave the judges less freedom to exercise personal
judgment, decreasing accountability and personal responsibility in
deciding cases.26 Other critics charge that the focus on efficient case
management has transformed judges from adjudicators to managers.27
Nevertheless, effective civil case management has become a cornerstone of
improving the efficiency and effectiveness of federal civil dispute
resolution.
Another way to improve judicial performance given burgeoning
federal caseloads is the integration of alternative dispute resolution
(ADR) into the civil litigation process. In fact, one of the primary
recommendations of the 1976 National Conference on the Causes of
Popular Dissatisfaction with the Administration of Justice, known as the
Pound Conference, was increasing the use of ADR in civil case
management.28 While most of these recommendations focused on state
level dispute resolution, such as the development of informal
neighborhood justice centers and the revitalization of small claims courts,
arbitration (especially in commercial cases) was a central theme for justice
sector reform.29 With the passage of the CJRA in 1990, ADR became one of
the avenues of improving federal case management. 30 The Alternative
Dispute Resolution Act of 1998 further required federal district courts to
adopt and incorporate ADR into civil processes.31
Yet another tool to increase productivity and the efficient disposition of
cases is the procedural rules adopted to control litigant conduct. Litigation
abuses and excessive motion practice, especially in the context of civil
discovery, lead to delay and increased costs. As such, the 1976 Pound
Conference recommended procedural rule changes to combat discovery

is to improve the quality of civil justice; to help parties to civil disputes obtain a fair resolution
(often by other than adversary procedures) at a cost commensurate with what is at stake.).
26

REHNQUIST, supra note 13, at 34.

Frank Munger & Joseph Belluck, Judicial Impact Statements: Unpacking the Discourse, in
CONFERENCE ON ASSESSING THE EFFECTS OF LEGISLATION ON THE WORKLOAD OF THE COURTS
47, 53 (A. Fletcher Magnum ed., 2005).
27

28 AM. BAR ASSN, REPORT OF POUND CONFERENCE FOLLOW-UP TASK FORCE 9 (1976)
[hereinafter POUND CONFERENCE REPORT].
29

Id. at 1216.
See Content of Civil Justice Expense and Delay Reduction Plans, 28 U.S.C. 473(a)(6)
(1994).
31 See Authorization of Arbitration, 28 U.S.C. 651 (1994). For a list of local federal court
rules relating to ADR, see http://www.justice.gov/olp/adr/compendium.html.
30

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abuse, especially in complex litigation.32 For example, the adoption of Rule

11 of the Federal Rules of Civil Procedure in 1983 allows sanctions for the
filing of frivolous claims or litigation tactics that delay case resolution. 33
Unfortunately, an empirical study conducted by the Federal Judicial Center
after the adoption of Rule 11 found that the rule tended to harm plaintiffs
more than defendants and created more motion practice in litigating Rule
11 motions that were generally not granted. 34 To alleviate this problem,
Rule 11 was amended again in the early 1990s to allow a party to
voluntarily withdraw a motion after notice of potential Rule 11 sanctions.35
Rule changes therefore, are an important aspect of achieving not only
efficiency in the federal judicial system, but also in serving litigants
interests and protecting scarce judicial resources.36
Other significant contributions to improving federal court productivity
are the development of rules and policies that allow for cross-district
cooperation and assistance, as well as judicial policies that encourage
judges who have taken senior status to continue to hear cases. Chief Justice
William Howard Taft initiated an effort while he was President to allow
federal judges to provide temporary assistance to districts with heavier
caseloads and backlog issues.37 While his flying squadron of judges was
not implemented by Congress at that time,38 federal law now authorizes
federal judges to provide temporary judicial assistance to other districts
within their circuit, or in some circumstances, in other circuits.39 Another
major achievement in sharing judicial resources to avoid duplication was
the creation of the United States Judicial Panel on Multidistrict Litigation
(JPML) in 1968.40 The Panel has the authority to consolidate federal civil
cases pending in different districts into a single transferee court for
purposes of pretrial process and discovery where such cases involve

32

See POUND CONFERENCE REPORT, supra note 28, at 2728.

Thomas E. Willging, Past and Potential Uses of Empirical Research in Civil Rulemaking, 77
NOTRE DAME L. REV. 1121, 1147 (2002).
33

34

Id. at 1149.
Id. at 1150.
36 Cf. Jonathan R. Macey, Public Choice, and the Rules of Procedure, in CONFERENCE ON
ASSESSING THE EFFECTS OF LEGISLATION ON THE WORKLOAD OF THE COURTS: PAPERS AND
PROCEEDINGS 61, 61 (finding that an efficient procedural system will minimize the costs of
erroneous judicial decisions and costs of operating that system).
35

37

See Chief Justice William Howard Taft, THIRD BRANCH (1997), available at
http://www.uscourts.gov/News/TheThirdBranch/97-09-01/Chief_Justice_William_Howard_
Taft.aspx.
38
39
40

Id.
See 28 U.S.C. 29197 (2006).
See Multidistrict Litigation, 28 U.S.C. 1407 (2006).

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common questions of fact (such as in mass torts). 41 The key function of the
transfer is to avoid duplication of discovery, to prevent inconsistent
pretrial rulings, and to conserve the resources of the parties, their counsel
and the judiciary.42
Not all efforts of the federal judiciary to improve judicial performance
and productivity have been successful. For example, efforts were made
beginning in the 1970s and through the 1990s to require Congress to
prepare judicial impact assessments to analyze the impact of new
legislation on the workload of the federal courts. 43 Judicial impact
assessments, however, failed to emerge as a backstop against congressional
expansion of federal judicial workloads. Another long-standing argument
to improve federal judicial productivity is to limit the subject matter
jurisdiction of the federal courts, especially with respect to diversity
jurisdiction. Roscoe Pound famously derided the archaic nature of
concurrent jurisdiction between federal and state courts, a system by
virtue of which causes continually hang in the air between two
courts . . . .44 The 1976 Pound Conference seized upon these sentiments
and recommended changes to federal jurisdiction, such as sharply limiting
(or even eliminating) diversity jurisdiction.45 As one jurist noted, federal
diversity jurisdiction must go.46 Without any interest on Capitol Hill in
limiting federal jurisdiction for the purposes of improving the efficiency of
the federal courts or conserving judicial resources, structural changes to the
federal courts are an unlikely source of improvements in the
administration of justice.
II. Defining Judicial Effectiveness: Prudential and Constitutional
Considerations
With efforts past and present to ensure federal court productivity
through legislative and policy changes, training, and technological
advances, few proposals have been put forward or adopted that would
measure federal judicial performance on an individual level. As such,
formally assessing the productivity, fairness, and competence of individual

41 For an overview of the JPML see U.S. JUDICIAL PANEL ON MULTIDISTRICT LITIGATION,
http://www.jpml.uscourts.gov/panel-info/overview-panel (last visited Sept. 22, 2014).
42

Id.
See, e.g., Jeffrey W. Stempel, New Paradigm, Normal Science, or Crumbling Construct?
Trends in Adjudicatory Procedure and Litigation Reform, 59 BROOK. L. REV. 659, 747 (1993).
43

44

POUND, supra note 7, at 19.

POUND CONFERENCE REPORT, supra note 28, at 3738.
46 Hon. Shirley M. Hufstedler, New Blocks for Old Pyramids: Reshaping the Judicial System, in
NATIONAL CONFERENCE ON THE CAUSES OF POPULAR DISSATISFACTION WITH THE
ADMINISTRATION OF JUSTICE 39, 45 (1976).
45

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federal judges has generally not been considered as a means to improve

federal judicial administration.47 This problem (if it is one) results from
several features of the federal judiciary, most notably the entrenched
independence of individual judges entitled to life tenure, security of salary,
and the decentralized nature of federal court governance. Moreover,
judicial performance metrics, especially attempts to shame federal judges
into compliance with the benchmark, could be considered counterproductive to maintaining public confidence in the federal courts.
Official evaluation of federal judicial performance is driven by
Congress and the Judicial Conference of the United States, and reflects
concerns focused primarily on the efficiency of court operations. 48 The
focus on the efficient disposition of cases is not new, nor is it considered as
the goal of the judicial process. Instead, as put by the Pound Conference
Follow Up Task Force, chaired by Judge Griffin Bell:
neither efficiency for the sake of efficiency, nor speed of
adjudication for its own sake are the ends which underlie our
concern with the administration of justice in this country. The
ultimate goal is to make it possible for our system to provide
justice for all. Constitutional guarantees of human rights ring
hollow if there is no forum available in fact for their vindication.49

By the late 1980s, however, Congress turned its efforts towards improving
civil processes in federal courts through a series of laws intended to
improve the overall effectiveness and structure of the federal court system.
Beginning with the Federal Courts Study Act of 1988, Congress asserted its
role in monitoring the effectiveness of the federal court system. 50
More importantly, in terms of evaluating federal judicial performance
on an individual level, Congress passed the CJRA in 1990, requiring district
courts to report statistics relating to each judges disposition rates for civil
motions and trials.51 Although there are no formal consequences or
discipline for excessive numbers of motions pending over six months or
civil cases pending over three years, the public disclosure of such
47 The notable exception is the Criminal Justice Reform Act, which requires the Director of
the Administrative Office of the U.S. Courts to prepare a semiannual report showing, among
other things, all motions pending more than six months and all civil cases pending more than
three years as of the reporting date for all district and magistrate judges. See Enhancement of
Judicial Information Dissemination, 28 U.S.C. 476 (2012).
48

Young & Singer, supra note 3, at 6263.

POUND CONFERENCE REPORT, supra note 28, at xi.
50 See Federal Courts Study Act, Pub. L. 100-702, 102 Stat. 4644 (establishing a committee
that would, among other things, collect and review studies on the effectiveness of the
courts . . . .); see also REPORT OF THE FEDERAL COURTS STUDY COMMITTEE 3 (1990), available at
http://www.fjc.gov/public/pdf.nsf/lookup/repfcsc.pdf/$file/repfcsc.pdf.
49

51

See Judiciary and Judicial Procedure, 28 U.S.C. 476 (2012).

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information has been considered a method of shaming federal judges

into productivity.52 Consequently, performance metrics will naturally tend
to incentivize certain judicial behaviors. In the case of CJRA reporting, the
semi-annual reporting on the status of motions and trials before particular
federal judges results in a spike in dispositions just before the reporting
dates.53
CJRA reportingwhich, for some, has successfully incentivized federal
trial judges to expeditiously decide motions and schedule trialshas
opened debate as to what other federal judicial performance measures
might be equally successful in solving perceived problems in the
administration of justice at the federal level. This Article does not suggest a
new metric for measuring individual judicial performance in the federal
court system. Rather, based on the effect of the CJRA, proposed future
federal judicial performance metrics should consider the extent to which
the proposed metric advances effective federal court adjudication. The
effectiveness of federal dispute resolution should be judged not only by its
success in advancing prudential goals (such as cost effectiveness and
efficiency), but also in advancing the constitutional role of the federal court
system (such as securing faith in the rule of law through the fair and just
resolution of disputes subject to federal jurisdiction). From a prudential
perspective, the adjudicative process in our federal courts can be measured
by considerations such as expedience (disposition times), accuracy
(reversal rates), and cost effectiveness (for parties and the courts). Outputbased measures might also be incorporated into the prudential mixsuch
as quantity of published opinions, dismissals with prejudice, jury verdicts,
and the like. At the same time, constitutional considerations demand that
federal judges be assessed based on more amorphous standards, such as
fairness and impartiality (including ethical behavior), qualifications and
competence, and independence from political pressure.
Existing federal judicial performance metrics heavy focus on
prudential concerns in formal adjudication has diverted attention and
debate away from measuring judicial performance in fulfilling the
constitutional role of federal judges. Currently, performance metrics do not
evaluate an individual federal judges ability to decide cases or
controversies in a manner that enforces judicial independence and
promotes fairness and impartiality. Instead, constitutional design and
regulation serve these constitutional goals. By constitutional designand
to ensure independence from political pressure (as a component of
fairness)federal judges are appointed rather than elected, are entitled to

52
53

Mark Spottswood, The Perils of Productivity, 48 NEW ENG. L. REV. 503, 506 (2014).
See id. at 517 n.53.

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security of tenure, and are afforded protection for their salaries. 54 To ensure
impartiality, from a regulatory perspective, federal judges are subject to a
code of conduct;55 must make annual financial disclosures;56 and must
abide by federal judicial policies relating to gifts, honoraria, and outside
employment.57 As to the latter requirement, federal judicial policy also
requires disclosures when a judge attends privately-funded educational
programs or seminars.58 Under the Judicial Conduct and Disability Act of
1980, federal judges are held accountable for any misconduct or ethical
violations by allowing individuals to file complaints with designated court
offices.59 Various federal laws allow parties to move to disqualify the
assigned federal judge if the judges impartiality is in question.60 Finally, to
promote public understanding of the judicial process and faith in the rule
of law, virtually all judicial opinions are either published or publicly
available, courtroom proceedings are generally open to the public, and the
qualifications of federal judges are a matter of public record.
With these formal rules and policies in place to promote the
constitutional aspects of federal court adjudication, debate has begun on
whether and in what form performance metrics could be implemented to
measure the quality (as opposed to the productivity) of a federal judge. To
do so, however, proxies must be developed for the values and goals of
federal court adjudication that consider its constitutional dimension and

54

U.S. CONST. art. III, 1.

CODE OF CONDUCT FOR UNITED STATES JUDGES CANON 3 (2011), available at
http://www.uscourts.gov/RulesAndPolicies/CodesOfConduct/CodeConductUnitedStatesJudg
es.aspx. According to the U.S. Courts, the Code of Conduct provides guidance for judges on
issues of judicial integrity and independence, judicial diligence and impartiality, permissible
extra-judicial activities, and the avoidance of impropriety or even its appearance. Codes of
Conduct, U.S. COURTS, http://www.uscourts.gov/RulesAndPolicies/CodesofConduct.aspx (last
visited. Sept. 22, 2014).
56 Annual financial disclosure reports are filed by federal judges. Ethics in Government
Act of 1978, Pub. L. No. 95-521, 92 Stat. 1824 (codified as amended in scattered sections of 5
U.S.C.).
55

57 2 GUIDE TO JUDICIARY POLICY 8 (2010), available at http://www.uscourts.gov/

RulesAndPolicies/conduct/Vol02C-Ch06.pdf; 2 GUIDE TO JUDICIARY POLICY 15 (2010), available
at
http://www.uscourts.gov/viewer.aspx?doc=/uscourts/RulesandPolicies/conduct/Vol02CCh10.pdf.
58 Seminar, Policy on Judges Attendance at Privately Funded Educational Programs,
Judicial Conference of the United States (Apr. 2, 2007), available at http://www.uscourts.gov/
RulesAndPolicies/SeminarDisclosure/judbrappc906c.pdf.
59 See 28 U.S.C. 35164 (2012). For general information on filing complaints against
federal judges, see http://www.uscourts.gov/Viewer.aspx?doc=/uscourts/RulesAndPolicies/
conduct/jud_conduct_and_disability_procedure.pdf.
60 See generally Charles Geyh, Judicial Disqualification: An Analysis of Federal Law, available at
http://www.fjc.gov/public/polf.nsf/lookup/judicialq/pdf/$file/judicialq.pdf.

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not solely its prudential goals. In other words, what aspects of adjudication
can be measured that reflect the constitutional goals of independence,
impartiality, and fundamental fairness? The work of Judge William Young
and Professor Jordan Singer suggests that a federal judges time in open
court deciding motions or cases is an adequate proxy for some aspects of
the judges constitutional role.61 Other scholars have suggested
competence, independence, and impartiality could be ascertained through
proxies such as frequency of citations, publication rates, and rates of
reversal.62
Any such proposed metric for judicial performance, however, must be
analyzed and debated in terms of its ability to incentivize judicial behavior
that promotes both the prudential goals of dispute resolution (such as
expeditiousness and cost effectiveness) and the constitutional goals of
federal court adjudication (in particular independence, impartiality,
competence, and fairness). Proxies for the quality of judging rather than
productivity are problematic because they do not necessarily advance or
incentivize judicial behavior that promotes fairness and impartiality in the
way that measuring disposition time advances the prudential goals of
expeditious and efficient case management and resolution. As noted in one
article challenging proxies used to assess judicial performance, there is
now a general consensus that (1) the judicial virtues the legal empiricists
set out to measure probably have little bearing on what actually makes for
a good judge; and (2) even if they did, the empiricists chosen variables
have not measured those virtues accurately.63
With no consensus on how or even whether to measure federal judicial
performance, at a minimum, any future debate on individual judicial
performance metrics must consider how the metric will incentivize behavior
that satisfies both the prudential and constitutional aspects of federal
judicial decision-making. Thus far, efforts to encourage or incentivize
federal judicial behavior have been aimed primarily at the efficiency (or
prudential) component of adjudication, such as under the CJRA model,
rather than fostering the constitutional demands of federal court
adjudication.
III. The More with Less Reality of Federal Court Adjudication
Another critical consideration in the efficacy of any proposal to
measure federal judicial performance should be the impact on judicial
resources in implementing, monitoring, and maintaining such a system.
61

See Young & Singer, supra note 3, at 8993.

See Levi & Gulati, supra note 4, at 40102.
63 See Marin K. Levy, Kate Stith & Jos A. Cabranes, The Costs of Judging Judges by the
Numbers, 28 YALE L. & POL'Y REV. 313, 314 (2010).
62

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For the last thirty years, the federal courts have been operating under the
shadow of continued budget cuts, resulting in periodic layoffs of court
personnel, and reduced programs and necessary services. The federal
judiciarys internal cost containment efforts have also conserved and
reallocated precious judicial resourcesespecially in terms of controlling
both personnel and facilities costs associated with the staggering rent the
judiciary pays for its courthouses to the General Services Administration.
Caseloads have increased and the Senate has continually failed to confirm
qualified judges because of unrelated political disputes. As a result of these
stresses on our nations federal court system, federal judges and court staff
must continue to do more with less.
Whatever benchmarks are advocated and potentially adopted to
measure district court productivity, they must be developed within the
very real context of fiscal austerity that is certain to continue for decades.
This means that metrics for judicial performance should consider not only
the constitutional role and obligations of the federal courts, or the more
common focus (driven by Congress) on mitigating the delay in case
processing that leads to higher litigation costs, but also the potential impact
of such metrics on federal judicial resources. As such, metrics that will
incentivize intensive expenditures of scarce judicial resources must be
avoided.
In the current atmosphere of federal funds sequestration and talk of the
fiscal cliff, it is easy to forget that our nations federal court system has
labored under fiscal austerity for decades. In an address by Chief Justice
Rehnquist to the ABA in October 1993, he presciently warned that in the
future, a regime of fiscal austerity will predominate . . . . [requiring the
federal courts] to use even more efficiently the resources available today
and those few which may be added in the future to process a growing
number of cases.64 For example, in 1993 as a result of congressional budget
cuts, the federal courts had to request additional federal funds after a
budget shortfall rendered the courts unable to pay court-appointed
attorneys and jurors.65 By 2004, Chief Justice Rehnquist and the Judicial
Conference put in place an aggressive cost-containment strategy for the
federal courts that continues today to deal with the new era of fiscal
austerity.66

64 RUSSELL R. WHEELER & GORDON BERMANT, FED. JUDICIAL CTR., GOVERNANCE: WHY
CONGRESS SHOULDAND WHY CONGRESS SHOULD NOTCREATE A FULL-TIME EXECUTIVE
JUDGE, ABOLISH THE JUDICIAL CONFERENCE, AND REMOVE CIRCUIT JUDGES FROM DISTRICT
COURT GOVERNANCE 1, 4 (1994).
65 Munger & Belluck, supra note 27, at 53.
66 See C.J. WILLIAM H. REHNQUIST, 2004 YEAR-END REPORT ON THE FEDERAL JUDICIARY 23
(Jan. 1 2005), available at http://www.supremecourt.gov/publicinfo/year-end/2004year-

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To analyze the appropriateness of any metric for judicial performance,

therefore, it is important to consider how federal fiscal austerityin
general and the federal judiciarys cost containment strategy in particular
limits the ability of judges and court personnel to effectively satisfy the
evaluation criteria. For example, as noted in Chief Justice Roberts 2012
Year-End Report, the federal judiciary has focused its cost-containment
efforts on reducing rent, personnel expenses, and improving efficiency
through increased use of information technology.67 Towards those ends,
the federal judiciary has invested in developing new ways to reduce
expenses associated with facilities costs, including programs that limit
space for judges and their staff and deferring construction of new
courthouses.68 To control the growth of personnel costs the federal
judiciary has been also forced to limit support staff, eliminate cost of living
increases in salaries, and to exhort court personnel to adopt more efficient
management policies.69 Again in the 2013 Year-End Report, Chief Justice
Roberts stressed that [t]he budget remains the single most important issue
facing the [federal] courts.70
In addition to the problem of less funding, intense partisanship on
Capitol Hill has resulted in fewer resources overall for the federal courts.
Congress has remained reluctant to create new judgeships (especially at the
appellate level)71 and to fill existing vacancies.72 Congress has also refused
to pass legislation to increase judicial salaries and rarely allows for modest
cost-of-living increases.73 At the same time, Congress has demanded that
federal courts remain expedient and productive in the face of excessive
caseloads, requiring federal trial judges to spend more time administering
and managing cases.74
Within this more with less context, any proposed judicial
performance measure must be critically analyzed to understand the impact

endreport.pdf.
67

See ROBERTS, supra note 16, at 47.

Id. at 45.
69 Id. at 67.
70 C.J. JOHN G. ROBERTS, JR., 2013 YEAR-END REPORT ON THE FEDERAL JUDICIARY 1 (Dec. 13
2013), available at http://www.supremecourt.gov/publicinfo/year-end/2013year-endreport.pdf.
68

71

See AUTHORIZED JUDGESHIPS, supra note 15, at 18.

See ROBERTS supra note 16, at 910.
73 See, e.g., C.J. JOHN G. ROBERTS, JR., 2005 YEAR-END REPORT ON THE FEDERAL JUDICIARY 34
(Jan. 1, 2006), available at http://www.supremecourt.gov/publicinfo/year-end/2005yearendreport.pdf (describing the failure to increase judicial salaries as a threat to judicial
independence). For a list of judicial salaries since 1968, see Judicial Salaries Since 1968, UNITED
STATES
COURTS,
http://www.uscourts.gov/JudgesAndJudgeships/JudicialCompensation/
judicial-salaries-since-1968.aspx (last visited Apr. 3, 2014).
72

74

See REHNQUIST, supra note 13, at 68, 11.

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it will have on judicial behavior, and thus judicial resources. For example,
looking to the bench presence model proposed by Judge Young and
Professor Singer, trial judges will be evaluated on how much time they
spend in open court, which will obviously incentivize greater use of
courtroom facilities. Looking to the impact on judicial resources, this will
require greater use of courtroom facilities at a time when the federal courts
are closing and consolidating courthouses to achieve cost containment, and
it may require the presence of more court personnel (such as court
reporters, court interpreters, and courtroom deputies). It also has the
potential to increase litigation costs as judges schedule hearings in open
court for matters that could easily be resolved on the papers or through a
simple video-conference in chambers. Although there is merit to the
suggestion that federal trial judges should spend more time actually
interacting with the parties and the public, how the federal courts
implement that goal through an objective metric must necessarily be
evaluated in terms of how it will impact judicial resources. Similarly, other
suggested proxies for judicial quality, such as the publication or citation of
opinions, might incentivize behavior that usurps precious judicial
resources (such as diverting judicial time away from seemingly routine
cases and focusing instead on noteworthy cases likely to be cited, or
extending disposition times as more lengthy opinions are written).

CONCLUSION
The question of how or whether to measure federal judicial
performance is an important one that should be encouraged and
thoughtfully debated. At the same time, there is no doubt that we are
entering an era of new challenges for the federal courts. Ever-present fiscal
concerns and an unpredictable political climate make it difficult to obtain
needed legislation, while dwindling judicial resources strain the federal
courts. At the same time, the federal courts carry on with the institutional
desire and imperative to maintain the public trust and to efficiently and
effectively resolve civil and criminal cases. Amidst these challenges, the
federal courts and federal judges continue to find innovative ways to
provide needed services to litigants and criminal defendants, and to meet
the demands of growing dockets. Federal courts carry on, even as
courthouses close, the number of federal judges remains fixed at 1990
levels, judicial salaries are stagnant, and judicial personnel face the
constant threat of layoffs.
Within this more with less reality, future judicial performance
measures must be evaluated and understood in terms of two critical
criteria. First, will the metric incentivize judicial behavior that not only
promotes prudential values such as efficiency and productivity, but also

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constitutional values such as impartiality, independence, and fairness?

Second, will the metric incentivize judicial behavior that will exacerbate the
shortage of judicial resources (in terms of space, facilities, support staff,
and overall judicial time) that is destined to shape federal judicial policy in
the future?