Judicial System, Federal

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The charter of the federal judicial system is Article III of the Constitution, authorizing the creation of federal tribunals vested with the judicial power of the united states of the United States, that is, the authority to adjudicate a specifically enumerated set of cases and controversies. Article III also specifies the method of appointment of federal judges and lays down rules designed to guard their independence.

The Framers, mindful of the problems that the absence of a national judiciary had caused under the articles of confederation, easily agreed that there must be a national Supreme Court with power to assure the uniformity and supremacy of federal law. But the Framers were divided over the question whether further provision should be made for national courts. Some favored the creation of a complete system of federal courts. Some thought that this would unnecessarily narrow the preexisting general jurisdiction of the state courts; they argued that national interests could be sufficiently protected by providing for Supreme Court review of state court decisions involving questions of federal law. This division was settled by a compromise: Article III itself mandates that there shall be "one Supreme Court"; but beyond this the federal judicial power is simply vested in "such inferior Courts as the Congress may from time to time ordain and establish."

Article III specifies that the Supreme Court (and whatever inferior federal courts Congress may establish) are to be courts of a strictly limited jurisdiction: they may adjudicate only nine enumerated categories of cases. Some of these were included because they touch on issues of national interest: most important, cases "arising under" the Constitution and laws of the United States (the federal question jurisdiction) ; cases of admiralty and maritime jurisdiction; and cases to which the United States is a party. Federal courts were also empowered to decide certain controversies implicating the nation's foreign affairs (for example, disputes affecting ambassadors and other alien parties; cases arising under treaties). The remaining categories authorize the federal courts to engage in interstate umpiring in cases where it was feared that parochial interests would prevail in the state courts. Examples are controversies between states, between a state and a citizen of another state, and between citizens of different states.

Article III's specification that the judicial power consists of adjudicating "cases" or "controversies" itself embodies a fundamental political decision: the national courts were to exercise only a judicial power. Thus the constitutional convention of 1787 repeatedly and explicitly rejected a variety of proposals to allow federal courts or judges to participate as advisers or revisers in the legislative process or to render advisory opinions; their authority was to be limited to "cases of a judiciary nature." On the other hand, the historical evidence establishes the Framers' understanding that the grant of the judicial power was to include the authority, where necessary to the lawful decision of a case properly within a court's jurisdiction, to disregard federal or state statutes found to be unconstitutional. This power of judicial review, occasionally challenged as a usurpation because it is not explicitly mentioned in Article III, has been settled since marbury v. madison (1803).

Besides defining the outer bounds of the federal judicial power, Article III protects federal judges from political pressures by guaranteeing tenure during good behavior without reduction in compensation.

Article III is not self-executing; it needs legislation to bring it to life, most particularly because Congress must determine whether there should be "inferior" federal courts and what should be the scope of their jurisdiction. It is to this task that the First Congress turned in its twentieth enactment: the seminal judiciary act of 1789. Obeying the Constitution's command, the act constituted a Supreme Court, consisting of a chief justice and five associates. Next, the act, establishing a tradition persisting without interruption to this day, took up the constitutional option to create a system of federal courts of original jurisdiction. The structure created was curious, but survived for a century. The country was divided into districts (at least one for each state), with a district court manned by a district judge. In addition, the country was divided into circuits (originally three), each with another trial court—a circuit court—manned not by its own judges but by two Supreme Court Justices (sitting "on circuit") and a district judge.

Only a fraction of the constitutional potential for original federal court jurisdiction was exploited by the first Judiciary Act, attesting to the clear contemporaneous understanding of the Constitution that it is for Congress to determine which (if any) of the cases and controversies encompassed by the federal judicial power should be adjudicated in the first instance in a lower federal (rather than a state) court. (The modest original jurisdiction of the Supreme Court, limited to controversies where a state is a party and certain cases involving foreign diplomats, is thought to flow "directly" from the Constitution and thus represents a special case.) The district courts were given the jurisdiction most clearly felt to be a national one: authority to adjudicate admiralty cases. In a controversial decision, the First Congress set a precedent by opening the circuit courts to some cases involving controversies between citizens of different states and involving aliens. The federal trial courts were also granted jurisdiction over most civil suits brought by the United States and over the then negligible federal criminal caseload. Notably, the act did not give the federal trial courts jurisdiction over cases "arising under" federal law, leaving these to be adjudicated in the state courts.

The appellate structure of the new court system was rudimentary. Federal criminal cases were left without direct review (and remained so for a century). The circuit courts were given a limited appellate jurisdiction over the district courts, and the Supreme Court was authorized to review civil cases decided by the circuit courts involving more than $2,000.

Finally, in its famous section 25, the act—consistent with the Framers' intention to assure the supremacy of federal law—gave the Supreme Court power to review final state court judgments rejecting claims of right or immunity under federal law. (State court judgments upholding claims of right under federal law were not made reviewable until 1914.) Supreme Court review of state judgments involving questions of federal law has been a feature of our judicial federalism ever since 1789, and has served as a profoundly significant instrument for consolidating and protecting national power.

The institutional structure created by the first Judiciary Act proved to be remarkably stable; major structural change did not come until 1891. The Supreme Court has had a continuous existence since 1789, with changes only in the number of Justices. So also have the district courts (though their number has of course undergone major change). Even the circuit courts—architecturally the weakest feature of the system—survived for more than a century.

As to the jurisdiction of the federal courts, changes were incremental in the pre-civil war period, with the state courts acting as the primary enforcers of the still rudimentary corpus of national law. But the Civil War brought a sea change: Congress was no longer prepared to depend on the state judiciaries to enforce rights guaranteed by the new fourteenth amendment and by the Reconstruction legislation. By the habeas corpus act of 1867 and the various civil rights acts, Congress extended the lower federal courts' jurisdiction to include claims against state officials for invasion of federal constitutional and statutory rights. These extensions were in turn overtaken by the judiciary act of 1875, giving the federal courts a general jurisdiction to adjudicate civil cases arising under federal law, subject only to a minimum amount-in-controversy. These expansions, supplemented by subsequent numerous specific extensions of federal trial jurisdiction over various sorts of actions involving national law, signaled the transformation of the federal courts from narrow forums designed to resolve maritime and certain interstate disputes into catholic tribunals playing a principal role in enforcing the growing body of national rights, privileges, and immunities.

The growth of the federal judicial business in the post-Civil War era placed an ever-growing pressure on the federal judicial system. The Supreme Court was especially burdened by the duties of circuit riding and by an increasing caseload. By 1890 the Court had a backload of 1800 cases; in the same year, 54,194 cases were pending in the lower federal courts. Congress responded to the crisis in the circuit courts of appeals act (Evarts Act) of 1891, which fixed the outline of the contemporary federal judicial system. The act established a system of intermediate appellate courts called Circuit Courts of Appeals (not to be confused with the old circuit courts, which were finally abolished in 1911), one for each of (the then) nine circuits and staffed with its own judges. Although a narrow category of district court decisions continued (and continue) to be reviewed directly by the Supreme Court, the Evarts Act created the standard modern practice: appeals went normally from the district courts to the new courts of appeals; the judgments of the latter were in turn reviewable by the Supreme Court.

The second major and seminal innovation of the Evarts Act related to appellate review in the Supreme Court: the act introduced the principle of review at the Court's own discretion (by writ of certiorari) of judgments in the lower courts. This principle was in turn greatly expanded in the so-called Judges' Bill of 1925, which sharply reduced the availability of Supreme Court review as of right of decisions of state and federal courts and substituted for it discretionary review on certiorari—the method of review that, to this day, dominates the Court's docket.

Changes in the structure of the federal judicial system have been few and minor since 1925, although both the statutory jurisdiction and the business of the courts have undergone major transformations. In essence the system remains a three-tier system, with the district courts serving as the trial courts, the courts of appeals as the appellate tribunals of first instance, and the Supreme Court as the court of final review (having also the power to review state court decisions involving issues of federal law). The picture is completed by the existence of special federal tribunals empowered to decide particular categories of cases, and by numerous federal administrative tribunals; the decisions of all of these are typically subject to review in the regular federal courts.

The most important component of the contemporary statutory jurisdiction of the united states district courts encompasses diversity cases involving more than $10,000, criminal prosecutions and civil actions brought by the United States, a large range of actions against the United States and its agencies and officials, federal habeas corpus, and—most significant—all civil cases in which a plaintiff sues on a claim arising under the Constitution and laws of the United States. The latter, all-encompassing rubric includes not only cases brought pursuant to the hundreds of federal statutes specifying a right to sue but also the numerous cases where that right is a judge-created ("implied") right to enforce a federal statutory or—(of profound significance)—constitutional provision not itself explicitly containing a right of action. In addition, the statutes allow certain diversity and federal question cases brought in the state courts to be removed for trial to a federal district court. Finally, the district courts exercise a significant jurisdiction to review the work of many federal administrative agencies and to review and supervise the work of the system of bankruptcy courts. The jurisdiction of the district courts is occasionally specified as exclusive of the state courts (for example, admiralty, copyright, and patent) ; most of their civil jurisdiction is, however, concurrent with that of the state courts.

The country is, in the mid-1980s, divided into ninety-seven districts (including the district of columbia and puerto rico). Each state has at least one district; districts have never encompassed more than one state. The district courts are staffed by 576 active district judges—almost three times the 1950 figure (182 new district judgeships were created between 1978 and 1984 alone). The growth in number of judges has, nevertheless, failed to keep pace with the explosive increase in the caseload that has occurred since the 1960s. In 1940 about 70,000 criminal and civil (nonbankruptcy) cases were filed in the federal courts; in 1960, about 80,000; by 1980, the figure was almost 200,000, and in 1984 it exceeded 275,000. (The compound annual rate of increase in the federal district court case load was under one percent between 1934 and 1960; it has been five percent since 1960.) The increase is due primarily and naturally to the vast growth in the total corpus of federal (constitutional, statutory, common, and administrative) law applied in turn to a growing country with an expansive and mobile economy. It has also been fed, however, in the past twenty-five years by congressional and court-initiated changes in substantive and remedial rules that have made the federal courts into powerful litigation-attracting engines for the creation and expansion of rights and the redistribution of entitlements and powers in our society. Thus open-ended constitutional and statutory formulas have been used to fuel aggressive judicial review of the validity of federal and state legislative and administrative action and to create an expansive system of remedies against federal and state government (including affirmative claims on the resources of these governments). justiciability requirements (such as standing) that previously narrowed the scope of jurisdiction over public law actions have been significantly eroded. And federal court litigation has become increasingly attractive to plaintiffs as a result of provisions for attorneys' fees, the elimination (or inflation-caused erosion) of amount-in-controversy requirements, and the increasing use of class actions.

These developments are reflected in the changing content of the federal district courts' workload. There were 6,000 suits against the United States in 1960, and almost 30,000 in 1983. There were only 300 civil rights cases in 1960, almost 20,000 in 1983; 2,100 prisoner postconviction cases in 1960, more than 30,000 in 1983; 500 social security law cases in 1960, more than 20,000 in 1983. In general, about thirty-five to forty percent of the mid-1980s district court civil caseload involve the United States or its officials as a plaintiff or defendant; sixty to sixty-five percent of the civil caseload is "private" (including, however, litigation against state and local governments and officials). Diversity cases have contributed about twenty percent of the caseload since the 1970s. The number of criminal prosecutions has, historically, fluctuated widely in response to special federal programs (peaking during prohibition) ; since the mid-1970s the criminal caseload has been quite stable and in the mid-1980s contributed about fifteen to twenty percent of the total.

In response to the explosive caseload Congress has acted to allow the district courts to rely substantially on the work of so-called federal magistrates—officials appointed by district judges with wide powers (subject to review by the district judge) to issue warrants, conduct preliminary hearings, try minor criminal offenses, supervise civil discovery, rule on preliminary motions and prisoner petitions, and (with the consent of the parties) even to hear and enter judgment generally in civil cases. The conferring of additional powers on magistrates has evoked controversy as well as some (so far unsuccessful) constitutional attacks.

The united states courts of appeals (as they are now called) have jurisdiction to review all final (and some interlocutory) decisions of the district courts. Pursuant to special statutory provisions they also review some cases coming directly from federal administrative agencies (this being an especially significant component of the business of the Court of Appeals for the District of Columbia Circuit). About fifteen percent of their cases are criminal cases, and another fifteen percent are federal and state prisoner postconviction and civil rights cases; only fourteen percent of their docket consists of diversity cases.

The caseload of the courts of appeals has increased dramatically in the last twenty-five years and is, in the mid-1980s, commonly described as constituting a crisis. In the forty years before 1960 that caseload hovered between 1,500 and the peak of 3,700 reached in 1960. In 1970 the figure was almost 11,500, and in 1980 it was over 21,000. From 1980 to 1983 the caseload jumped again to 29,580. From 1960 to 1983 there was an increase of almost 800 percent in the number of appeals from the district courts; the compound annual rate of increase for all cases from 1960 to 1983 was 9.4 percent (compared to 0.5 percent in the preceding twenty-five years).

To manage this workload there exist (in the mid-1980s) twelve courts of appeals assigned to geographical circuits (eleven in the states and one for the District of Columbia) and an additional one (described below) for certain special categories of subject matter. The number of judges in each circuit ranges from six (First) to twenty-eight (Ninth). There are 156 authorized circuit judgeships; in 1960 there were sixty-eight (and as recently as 1978 only ninety-seven). Cases are typically heard by panels of three judges; a few cases of special importance are in turn reheard by the court sitting en banc. The increase in number of judges has by no means kept pace with the expansion of the caseload since 1960. As a result, there have been substantial changes in the procedures of these courts: opportunities for oral argument (and even for briefing) have been sharply curtailed and an increasing proportion of cases is disposed of summarily, without opinion. Central staff attorneys (as well as a growing army of conventional law clerks) assist the judges.

From the beginning of our national history Congress has perceived a need to create special tribunals for the adjudication of cases falling outside the traditional areas of federal court jurisdiction. Military tribunals have, from the outset, administered a special body of law through special procedures. The administration of justice in the territories in transition toward statehood was perceived as requiring special temporary federal tribunals that would become state courts upon statehood; the District of Columbia and the territories and dependencies of the United States also require a full panoply of special federal courts to administer local law. Beginning in 1855, with the establishment of a rudimentary Court of Claims, Congress has created a series of special tribunals to adjudicate money claims against the United States. And, particularly with the advent in this century of the modern administrative state, Congress has created numerous administrative agencies and tribunals whose business includes adjudication.

Unlike the ordinary federal courts, the institutional hallmark of most of these tribunals has been specialization. Further, the transitory nature of some of these tribunals, the perceived need to allow some of them to function inexpensively with expeditious or informal procedures, and (in the case of the administrative agencies) the equally strongly perceived need to endow them with a range of policymaking functions in addition to adjudicative functions, has typically led Congress to create them not as tribunals constituted under Article III (with lifetime judges performing an exclusively judicial function) but as special legislative courts or administrative tribunals. Their judges typically serve temporary terms and are removable for misfeasance without impeachment. The constitutional authority for such tribunals has been much discussed and litigated; Congress's authority to constitute them has virtually always been upheld.

The most important specialized tribunals in the current federal judicial system are: the local courts of the District of Columbia, Puerto Rico, and the territories and dependencies; the system of military courts; the system of bankruptcy courts; the tax court and the claims court, adjudicating certain tax refund claims and certain damage actions against the federal government; the Court of International Trade, adjudicating certain customs disputes; and a large and variegated array of administrative tribunals and agencies. The work of all of these tribunals is typically subject to review, through various forms of proceedings, in the regular federal courts.

In addition, in 1982 Congress created a thirteenth court of appeals, the united states court of appeals for the federal circuit. This is a regular Article III court, whose jurisdiction is not territorial but is defined in terms of subject matter, including appeals from the Claims Court and the Court of International Trade and many patent and trademark cases.

Continuously since 1789 the Supreme Court has been the single institution with nationwide authority to supervise the inferior federal courts and to give voice to a uniform national law. The Court's size has varied from five to ten Justices; since 1869 it has consisted of a Chief Justice and eight associate Justices. The Supreme Court acts en banc, not in panels, though individual Justices have the conventional authority to issue stays and take emergency action. The Court acts by majority, but in this century the practice has been to grant a certiorari petition (setting the case for plenary review) if four Justices are in favor.

The caseload explosion in the lower federal courts has imposed major burdens on the Court. The Court disposed of over 4,000 cases in its 1983 term (compared to about 3,300 in 1970, 1,900 in 1960, and 1,200 in 1950). The task is possible because only a small number of cases (usually about 150) are decided on the merits by full opinion after plenary briefing and oral argument. Another 100 to 150 cases are decided on the merits by memorandum order. The remaining dispositions consist of summary denials of petitions for certiorari (or other writs); there were almost 3,900 of these in 1983–1984. In 1960 there were just under 2,000 new cases docketed in the Court; in 1970, about 3,400; in 1983, about 4,200. The increase in cases docketed means more and more resources devoted to "screening" cases for decision and less to the hearing and disposition of cases on the merits. Thus the time devoted to oral argument has shrunk steadily in this century and now almost never exceeds one hour per case. The length of briefs is limited; and an ever-growing battery of law clerks assists in legal research and in the drafting of opinions.

The content of the Court's work reflects the scope and content of the national law. In the 1983 term the Court's decisions by full opinion included three cases within the original jurisdiction; ninety-six civil cases coming from the lower federal courts (of which forty-six involved the federal government, twenty-eight involved state and local governments, and twenty-two were private cases); sixteen federal habeas corpus cases; and thirty-two cases from the state courts (eighteen civil and fourteen criminal). Diversity cases are rarely reviewed. The Court is, increasingly, a constitutional court; about half of its cases tend to involve a constitutional question as the (or a) principal issue. The United States (as party or amicus curiae) participates in over half of the cases that the Court decides on the merits.

Although the federal judicial system has grown substantially in its 200 years, the federal courts continue to constitute only a small—though disproportionately powerful—component of the American judicial system. (Fewer than three percent of the country's judges are federal Article III judges; the biggest states have judicial systems larger than the federal system.)

The relations between state and federal courts are multifarious and exceedingly complex. Except where Congress has specified that federal court jurisdiction is exclusive, state courts of general jurisdiction exercise a normal competence to adjudicate cases involving issues of federal law (particularly in that many such issues arise by way of defense in civil and criminal cases arising under state law). Their decisions of these cases are subject to Supreme Court review, usually on certiorari; but that Court's jurisdiction in such a case is limited to the federal question in the case and may not be exercised at all if the judgment rests on a valid and dispositive state-law ground. State court judgments on issues of federal law (unless reversed by the Supreme Court) have normal res judicata effect.

The federal district courts, in turn, adjudicate many questions of state law, not only in diversity cases but also in cases arising under federal law where state law governs one or more issues. No provision for review by the state courts of the correctness of federal court decisions on issues of state law has ever existed; but in a narrow class of cases federal courts will abstain from exercising an otherwise proper federal jurisdiction in order to allow a state law issue to be determined in the state courts. (See abstention doctrine.) Under the decision in erie railroad v. tompkins (1938), on issues of state law (including issues of state common law) state court precedents are accepted as authoritative by the federal courts.

Special problems are presented by the politically sensitive role of the federal courts in controlling the legality of the actions of state and local governments and their officials. Although the eleventh amendment bars the federal courts from asserting jurisdiction over actions against a state as such, a wide range of remedies against state and local governments and their officials exist in the federal courts. Federal courts routinely review the constitutional validity of state criminal convictions through the writ of habeas corpus. Since the adoption of the Civil Rights Act of 1871, they have exercised jurisdiction to grant injunctions and damages against state and local officials (and, more recently, against local governmental entities as such) for conduct under color of state law—including conduct by officials asserting official power even where the conduct is prohibited by state law—that infringes on the ever-growing corpus of federal constitutional and statutory rules governing state action. Federal courts may enjoin state officials from enforcing unconstitutional state statutes and administrative schemes; moreover, the courts' injunctive remedial powers are frequently exercised to assume broad managerial supervision over state agencies and bureaucracies (for example, schools, mental hospitals, prisons). And the ever-burgeoning array of federal conditions and restrictions that accompany federal economic and social programs available to the states are, as a matter of routine, enforceable in the federal courts.

The political sensitivities aroused by the federal courts' jurisdiction to control the validity of state and local government action has led to some statutory and judge-made restrictions on the exercise of this jurisdiction. For over half a century federal court actions to enjoin the enforcement of state statutes on constitutional grounds had to be litigated before three-judge courts and were subject to direct review by appeal to the Supreme Court. (The institution of the three-judge district court was virtually abolished in 1976.) During the new deal, statutory restrictions were placed on the jurisdiction of the federal courts to interfere with state tax statutes and public utility rate orders. Statutory and judge-made rules restrict the power of the federal courts to enjoin or interfere with pending state court proceedings; and state prisoners who fail to exhaust state court remedies or fail to comply with state procedural rules do not have access to federal habeas corpus.

The federal judicial system appears to operate on one-hundred-year cycles. The structure created in 1789 became increasingly unwieldy after the Civil War and was—after some twenty years of pressure for reform—finally transformed by the Evarts Act of 1891. That act created a stable system which has, in turn, come under increasing pressure from the caseload explosion that began in the 1960s. Relief could come in the form of diminutions in the district courts' original jurisdiction (such as a long-discussed abolition of or reduction in the diversity jurisdiction); but the need for architectural revision has also become increasingly clear in the 1970s and 1980s.

Structural problems center on the appellate tiers. Further substantial increases in the number of circuit judges is an uncertain remedy. Some circuits are already unwieldy and are finding it increasingly difficult to maintain stability and uniformity in the intracircuit law. Increasing the number of circuits would increase intercircuit instability and disuniformity and place further pressure on the finite appellate capacity of our "one Supreme Court"—the latter constituting the obvious structural bottleneck in the system.

More generally, a judicial system administering an enormous and dynamic corpus of national law and adjudicating a rising caseload (approaching 300,000 cases a year) cannot operate forever on an appellate capacity that is limited to some 150–200 judicial opinions with nationwide authority. There is rising concern, too, about the quality of federal justice as the growing caseload leads to an increasing bureaucratization of the federal judicial process, with the judges reduced to an oversight capacity in managing a growing array of magistrates, central staff, and law clerks.

Since the 1970s, two methods of increasing the system's capacity to provide authoritative and uniform judicial pronouncements on issues of national law have been discussed. One consists of greater subject-matter specialization at the appellate level, with special courts of appeals having nationwide authority to deal with specified subjects of federal litigation (for instance, tax cases, administrative appeals); such courts would remove pressure from the regional courts of appeals and the Supreme Court. The alternative (or additional) possibility is to create an additional appellate "tier": a national court of appeals with power to render decisions of nationwide authority, receiving its business by assignment from the Supreme Court or by transfer from the regional courts of appeals. In addition, if the number of certiorari petitions continues to mount, the Supreme Court will eventually have to make some adjustments in its screening procedures (perhaps dealing with these petitions in panels).

Behind these structural problems lie more fundamental questions about the enormous power that the federal courts have come to exercise over the political, economic, and social policies of the nation. Throughout our history intense controversy has surrounded the question whether (and to what extent) a small corps of appointed life-tenured officials should exercise wide-ranging powers to supervise and invalidate the actions of the political branches of federal, state, and local governments. From time to time these debates have threatened to affect the independence of the federal judicial system. Thus, in the 1930s, facing wholesale invalidations of the New Deal program by a "conservative" Supreme Court, President franklin d. roosevelt proposed to "pack" the Court with additional judges; his plan was widely perceived to be contrary to the spirit of the Constitution and was defeated in Congress. (Shortly thereafter a Court with a new membership and a new judicial philosophy in effect accomplished Roosevelt's purposes.)

In the second half of the twentieth century retaliatory proposals have mostly consisted of attempts to strip a "liberal" Supreme Court of appellate jurisdiction in certain categories of constitutional litigation (for example, reapportionment or abortion), leaving the state courts to be the final arbiters of federal law in these areas. Intense controversy surrounds the question whether Congress has constitutional power to divest the Supreme Court of appellate jurisdiction over specific categories of constitutional litigation. (The one explicit Supreme Court pronouncement on the question, the celebrated ex parte mccardle [1869], in sweeping language upheld this power pursuant to the explicit provision of Article III providing that the Court's appellate jurisdiction is subject to "such Exceptions" and "such Regulations" as "the Congress shall make.") Even if Congress has jurisdiction-strippingpower, however, its exercise—much like the exercise of the power to "pack" the Court—would be widely perceived as anticonstitutional in spirit. In fact, no such legislation has come near to achieving acceptance, attesting to the vast reservoir of ideological and political strength that the ideal of an independent federal judiciary continues to possess.

The more important and authentic debate that continues to rage as the federal court system enters its third century relates to the proper role of an independent federal judiciary in a nation that is democratic but also committed to the ideal of fidelity to law. The federal courts have come to exercise a power over the political, economic, and social life of this nation that no other independent judicial system in the history of mankind has possessed. Whether that power is wholly benign—or whether it should and can be reduced—is one of the great questions to which the twenty-first century will have to attend.

Paul M. Bator


American Law Institute 1969 Study of the Division of Jurisdiction Between State and Federal Courts. Washington D.C.: American Law Institute.

Bator, Paul M. et al. 1973 The Federal Courts and the FederalSystem, 2nd ed., with 1981 Supplement. Mineola, N.Y.: Foundation Press.

Carrington, Paul D.; Meador, Daniel J.; and Rosenberg, Mau -rice 1976 Justice on Appeal. St. Paul, Minn.: West Publishing Co.

Director of the Administrative Office of the United States Courts [annually] Annual Reports. Washington, D.C.: United States Government Printing Office.

Frankfurter, Felix and Landis, James M. 1928 The Business of the Supreme Court: A Study in the Federal Judicial System. New York: Macmillan.

Friendly, Henry J. 1973 Federal Jurisdiction: A General View. New York: Columbia University Press.

Posner, Richard A. 1985 The Federal Courts: Crisis and Reform. Cambridge, Mass.: Harvard University Press.

Wright, Charles Alan 1983 The Law of Federal Courts. St. Paul, Minn.: West Publishing Co.

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