Judge Higginbotham: The Present Plight of the United States District Courts

December 10th, 2010

Judge Higginbotham of the 5th Circuit has an article that is quite critical of the current state of Federal District Courts in the Duke Law Journal, titled The Present Plight of the United States District Courts.

Here is a quote from the conclusion.

The United States district courts are the most vital judicial institution in this country. Their courageous history of protecting the constitutional rights of the disfavored and the downtrodden has earned their great prestige and solidified their venerable role in American governance. Federal trial courts cannot maintain this status if they become indistinguishable from state highway departments; but on the present trajectory, this is their destination. If this bleak picture comes to pass, life tenure cannot be defended, and Article III “trial” courts will become indistinguishable from the thousands of administrative law judges. Civil service is just over the horizon.

The first step toward remedying this problem is to realize what it means for the district courts to operate at their optimal level. I have described the federal district courts as they now exist, and though this general description cannot capture every local variation, its broad accuracy is supported by available data. There are three possible responses to this troubling picture. First, one might conclude that thepicture is inaccurate and that federal district courts are in fact operating in their intended way. Second, one might determine that the picture is a fair approximation but that it should be left alone. Those with this reaction would accept the change in the role of the district courts and view it as an optimal—or at least more desirable— model for the federal courts. Finally, one might conclude that the principal work of a district court is to try cases and to offer litigants the opportunity for a reasonably prompt and impartial trial.

As one who firmly believes the district courts have lost their way, I have sought here to chart a course by which Congress or the judiciary could restore district courts to their proper role as trial courts. First, they should make federal trials more attractive to litigants by restoring twelve-person juries in civil cases and by prescribing early case control by the district court, including judicial control of party access to discovery. Judges—not the parties—should control access to discovery through a two-step process, with an initial hearing on whether to allow limited, preliminary discovery and later a second hearing to “peek” at the merits and decide whether there is a reasonable basis to grant access to full-fledged discovery. Further, courts should require parties to identify the necessary issues of fact and law and should permit only such discovery as is necessary to these issues, allowing the parties to supplement their list of issues as necessary at designated points in the litigation.

Sharp. This is probably going to cause some ripples.