Category: federal courts

Federal courts announce recommendations for workplace changes

The Federal Judiciary Workplace Conduct Working Group, formed in the aftermath of the Alex Kozinski scandal, has issued its report and recommendations.

From the press release:

The recommendations include clarifying workplace standards and communications about how employees can raise formal complaints, removing barriers to reporting complaints, providing additional and less formal avenues for employees to seek expert advice and assistance on workplace conduct issues, and utilizing enhanced training on these subjects for judges and employees.

Several recommendations of the Working Group have already been implemented or are underway, such as clarifying that confidentiality rules in the Judiciary do not prevent law clerks or employees from reporting misconduct by judges. Many of the report’s recommendations require further action by the Judicial Conference.

The entire report can be found here.

D.C. Circuit to begin live streaming oral arguments in September

The U.S. Court of Appeals for the D.C. Circuit will begin live audio streaming of its oral arguments when its new term commences in September. Chief Judge Merrick Garland made the announcement. D.C. joins several other circuit courts that have recently embraced streaming technology in the interest of improved transparency.

I wonder if anyone at One First Street is paying attention.

Patent filings in Eastern District of Texas fall 68% after TC Heartland decision

For many years, plaintiffs in patent infringement cases flocked to the Eastern District of Texas, spurred by welcoming judges, rocket docket scheduling, and a belief that they would find plaintiff-friendly juries. Defendants in the same cases naturally chafed at having to defend in the Eastern District, especially when there was little, if any, connection between that location and the allegedly infringing activity.  This led to hundreds of defense motions to transfer venue to another federal district court–motions that were usually denied by the local judges who wanted to keep the cases in their district. The Eastern District dominated the national patent docket, with well over a thousand infringement cases filed in the district each year.

That all changed last year, when the Supreme Court’s in TC Heartland v. Kraft Foods read the federal venue statutes to severely limit where patent infringement cases could be brought. No longer could a plaintiff assert a reasonable connection to the Eastern District of Texas just because some defendant sold an allegedly infringing product there. Unsurprisingly, the new restrictions have led to a drastic drop in filings in the Eastern District, and a growth in filings in the District of Delaware (where many business defendants are incorporated), among other venues.

It will be interesting to see where things settle in the coming years.

 

New research on the organizational role of court rulemaking

Flickr_-_USCapitol_-_Thurgood_Marshall_Federal_Judiciary_Building

I am delighted to announce that my new article, The Federal Courts’ Rulemaking Buffer, is now available on SSRN. Please download it early and often!

The article arose in response to two perplexing questions about the federal court system’s civil rulemaking process. First, why do the courts engage in rulemaking at all? The courts pride themselves on being highly efficient and countermajoritarian, but rulemaking is time-consuming, quasi-democratic, and policy-driven. Making rules by committee, then, seems particularly unsuited to the work of the judicial branch.

Second, why have the courts made the rulemaking process more complicated over time? Initially, the entire work of formulating and amending rules was assigned to a single committee. Today, the rulemaking process must navigate at least five levels of the court system hierarchy, with additional opportunities for public and special interest input. As a result, amending a single rule often taken three to five years.

So what gives? Why would the courts embrace a task outside of their expertise, and then make it more and more complex?

The article offers an explanation to both questions that is grounded in organizational theory. I explain that the court system initially developed the rulemaking process as a buffer, to protect its core work from the instability of its larger environment. The power to make procedural rules gives allows the court system to respond to a drop in resources, or a surge in cases, without the entire judicial process grinding to a halt. But the rulemaking process also requires external legitimacy to function, and when that legitimacy has been challenged from time to time, the courts have responded by making the process more open, complex, and transparent.

The article touches on many of themes of this blog, including the federal court system’s resource dependence, neoinstitutional theory, and the influential role of other organizations (such as executive agencies, the ABA, and Congress) in altering court-centered rulemaking over time. And it features appearances from William Howard Taft, Earl Warren, Warren Burger, Roscoe Pound, Tom Clark, and others.

The article will be formally published in the William & Mary Law Review later this year. I welcome any thoughts from readers, privately or in the comments.

Pictured: Thurgood Marshall Federal Judiciary Building

Courts are big organizations…

…and they require a lot more manpower than what the public might see at first glance. Courts need judges, clerks, and staff attorneys, to be sure — but they also need custodians, security officers, chefs, IT professionals, accountants, operations administrators, and every other type of job that allows large organizations to operate smoothly.

That point was recently driven home by this quirky job posting on the website for the United States Bankruptcy Court for the District of Colorado:

Apply for the full-time position of Database Specialist or Programmer for the United States Bankruptcy Court for the District of Colorado, and join us as a respected and valued cog of the massive federal  bureaucracy.

We work eight-hour days, rarely ever work after hours, and are not on call. Best of all, we have a benefits package that even the largest corporate conglomerate can’t (read won’t) offer, including a healthcare plan shared by members of the Supreme Court, all Federal Holidays off, amazing amounts of paid leave and separate sick leave, inclusion in one of the best rated, lowest cost retirement funds, and wait for it . . . a generous, guaranteed annuity (pension) backed by the Federal Government! You can work and have a life.

This job description is not exactly imbued with the deep solemnity that John Roberts tries to cultivate in all aspects  of the federal courts’ public persona. But perhaps that is the point. It’s a job posting for a database specialist, not a judge, and is (evidently) written to attract the best candidates for that specific position. Some database specialists may dream of working specifically in the court system. But I suspect that most don’t care too much about the organization’s day-to-day work, as long as the job is interesting, pays well, and has good benefits.

Bravo to the supervisors who allowed this posting to go up, and for giving us glimpse into the real people who make the courts run.

A rapid judicial appointment cascade

The White House recently announced that President Trump had nominated Judge A. Marvin Quattlebaum to a seat on the Fourth Circuit Court of Appeals. Judge Quattlebaum currently sits as a federal district judge in South Carolina–a position he has held for only two months.

There is nothing inherently wrong with seeking to promote* Judge Quattlebaum to the appellate bench. But choosing a sitting district judge will once again create a vacancy in South Carolina, and that vacancy may take much longer to fill. Politics may well dictate filling appellate benches, especially in election years. But the trial courts, the place where the public most closely and commonly interacts with the judicial system, risk becoming the forgotten child. They deserve to filled as rapidly, and with as much care, as do appellate court vacancies.

* Many on the federal district bench would quibble with this term: the trial judges are the real judges! I use it here only in the sense that the Fourth Circuit is higher in the federal hierarchy.

Federal judiciary issues $7.22B budget request for FY19

Representatives of the federal judiciary testified before the House Appropriations Subcommittee on Financial Services and General Government today, issuing a budget request for $7.22 billion for Fiscal Year 2019. The request reflects an overall increase of 3.2 percent to maintain current services and fund priority initiatives — including $95 million for cybersecurity.

Seven billion dollars is nothing to sneeze at, but it represents a tiny fraction of the overall national budget (currently proposed at $4.41 trillion for FY19). The requested judicial budget is one percent of the White House’s 2019 allocation for national defense alone. It is, in the end, a remarkably small amount of money to fund the operations of  an entire branch of government.

N.B. — in the link above, the U.S. Courts helpfully included a video of the entire hearing before the House Appropriations Subcommittee. Remarkably, this act of transparency did not hopelessly compromise the integrity of the federal judiciary. It’s time to bring similar video technology into the courtroom.

Federal courts release Annual Report and latest statistics

The Administrative Office of the United States Courts has released its 2017 annual report, which includes a wealth of caseload statistics for the district courts and circuit courts of appeal. It’s a fascinating read for those who like reams of data.

For those who just want the punchline, Law360 gives a good summary:

In the fiscal year ending Sept. 30, 2017, case filings fell in federal courts of appeal by 16 percent and in district courts by 7 percent, while petitions to U.S. bankruptcy courts fell by 2 percent, bringing the overall number of cases filed in each of those courts to their lowest levels since at least fiscal year 2013, the report shows.

Since 2013, the number of cases filed in federal appellate courts have dropped by 10.5 percent, while the number filed in district courts have fallen 6 percent and federal bankruptcy petitions have declined by 28.5 percent, according to the data, which pointed to a few factors that impacted the year-on-year decline in each of those courts.

In U.S. district courts, the decline from 2016 was driven by a reduction in civil filings. They fell 8 percent from approximately 291,000 to just under 268,000 from one year to the next, while civil filings per authorized judgeship dropped from 431 in 2016 to 396 in 2017, the report said.