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Published online by Cambridge University Press: 02 January 2018
I sit an ocean and a legal culture away. Asked to comment on reforms in England and Wales, my response is shaped by knowledge of the legal system of the United States, which shares aspirations similar with and has been much influenced by the judicial system of England and Wales, but is also very different from it.
Yet judicial systems on both sides of the Atlantic (and in many other places) have to face difficult challenges. How can governments create, select, and equip a sufficient number of individual judges to respond to the tens of thousands of complainants who come before them?
1. See Robert Stevens Reform in Haste und Repent at Leisure p 1 above.
2. See generally Jackson, Vicki C Suing the Federal Government: Sovereignty, Immunity, and Judicial Independence’ (2003) 35 Google Scholar Geo Wash Int LR 521; James E Pfander ‘Government Accountability in Europe: A Comparative Assessment’ (2003) 35 Geo Wash Intl LR 611: Judith Resnik and Julie Suk ‘Adding Insult to Injury: Questioning the Role of Dignity in Conceptions of Sovereignty’ (2003) 55 Stan LR 1951.
3. See, eg, Richard L Abel and Phillip S C Lewis Lawyers in Society: An Overview (1995): Stephen C Yeazell ‘Re-financing Civil Litigation’ (2001) 51 De Paul LR 183.
4. See, eg, Resnik, Judith Reconstructing Equality: Of Justice, Justicia, and the Gender of Jurisdiction’ (2002) 14 Google Scholar Yale JL & Feminism 393: Reva B Siege1 ‘She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family’ (2002) 115 Haw LR 947; Rosa Ehrenreich Brooks ‘Feminism and International Law: An Opportunity for Transformation’ (2002) 14 Yale JL & Feminism 345; Vicki C Jackson ‘Gender and Transnational Discourse’ (2002) 14 Yale JL & Feminism 377.
5. One illustration from outside the United States is that the highest demand on civil legal aid funds in England has come from disputes categorised as family conflicts. See Tamara Goriely ‘Making the Welfare State Work: Changing Conceptions of Legal Remedies Within the British Welfare State’ in Francis Regan, Alan Paterson, Tamara Goriely and Don Fleming (eds) The Transformation of Legal Aid: Comparative and Historical Studies (1999) p 108. Data from inside the United States demonstrate that this arena of life also creates a higher density of disputes than do other arenas. See David M Trubek, Austin Sarat, William L F Felstiner, Herbert M Kritzer and Joel B Grossman ‘The Costs of Ordinary Litigation’ (1983) 31 UCLALR 72 at 87, Table I (Litigation as a Percentage of Disputes).
6. Judges' Council Response to the Consultation Papers on Constitutional Reform (2003) pp 21–22.
7. See Resnik and Suk, n 2 above.
8. Constitutional Reform: A New Way of Appointing Judges CP 10/03 (July 2003) p 4 (hereinafter Appointing Judges).
9. See 28 USC 471–482 (Supp 1992) (a provision that has since expired).
10. These data come from the Report, The Effects of Gender, gathered by a Task Force commissioned by the Ninth Circuit (a federal circuit including the states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington). See The Final Report of the Ninth Circuit Gender Bias Task Force, republished in (1994) 67 SCal LR 727 at 787–790.
11. See Mallory v Harkness 895 F Supp 1556 (SD Fla, 1995), aff d without opinion, 109 F 3d 771 (11th Cir, 1997). Whether that understanding could be revisited or other statutes upheld in light of recent Supreme Court approval of affirmative action in higher education is an open question.
After the rulings, Florida revised its statutes and instead directed the Governor, when making appointments to the Judicial Nominating Commissions, to ‘ensure that, to the extent possible, the membership of the commission reflects the racial, ethnic, and gender diversity … of the population within the territorial jurisdiction of the court for which nominations will be considered’. See Fla Stat 43.291(4) (2003). Section 26.021 directs the commissions, in turn, to consider diversity in a similar fashion.
12. See Rome Statue of the International Criminal Court, UN Doc A/Conf. 183/9 at art 36(8)(a)(iii); 36(8)(b) (entered into force 1 July 2002).
13. Appointing Judges, n 8 above.
14. Constitutional Reform: a Supreme Court for the United Kingdom CP 11/03 (July 2003) (hereinafter Supreme Court).
15. See Appointing Judges, n 8 above, pp 43–53.
16. See Appointing Judges, n 8 above, pp 75–76.
17. William Howard Taft ‘Possible and Needed Reforms in Administration of Justice in Federal Courts’ (1922) 8 ABA J 601 at 602.
18. See Act of 14 September 1922, ch 306,2,42 Stat 837, which created the Conference of Senior Circuit Judges, since renamed, reconfigured somewhat, and codified at 28 USC 331.
19. See The Rules Enabling Act, now codified at 28 USC 2071, 2072ff.
20. See Act of 7 August 1939, ch 501, 304(2), 53 Stat 1223, now codified as amended at 28 USC 601–412.
21. See Act of 20 December 1967, Pub L 90–219, 620, 81 Stat 664, now codified as amended at 28 USC 620–429.
22. See William Rehnquist ‘The 1995 Year-End Report on the Federal Judiciary’ (1996) 28 Third Branch 1 (describing the tradition of making such remarks).
23. See A Fletcher Mangum (ed), Federal Judicial Center Conference on Assessing the Effects of Legislation on the Workload of the Courts: Papers and Proceedings 5–6 (1995).
24. See The Judicial Conference of the United States, Long Range Plan for the Federal Courts (December 1995), reprinted at 166 FRD 49 (1995) (hereinafter Long Range Plan).
25. See ‘Omnibus Appropriations Bill A Mixed Bag for Judiciary’ (November 1998) 30 Third Branch 1 at 1, 5 (describing ‘total [fiscal year] obligations of $4.06 billion for the Judiciary’, and summarising the allocations to salaries and expenses, to defender services, to juror fees, and to court security).
26. These data come from an analysis of materials available on terms of service of judges. See also Albert Yoon ‘Love's Labors Lost? Judicial Tenure among Federal Court Judges, 1945–2000’ (2003) 91 Calif LR 1029.
27. See, eg, Mass Const Pt 2, C.3, Art 1 (2003) (a provision added in 1972 and upheld by jurists in state and federal court); Vt Const Ch 11. 35 (2002).
28. See, eg, Art 37 of the Rome Statute (providing for a nine-year, non-renewable term).
29. See the Judicial Disability and Discipline Act of 1980, now codified at 28 USC 372ff.
30. See Judith Resnik ‘Supermajority Rule’New York Times, 11 June 2003, p A31.
31. See Judith Resnik The Senate's Role in the Confirmation Process: Statement and Testimony in Hearings before the Subcommittee on Administrative Oversight and the Courts, Senate Committee on the Judiciary, 107th Cong 2001, reprinted in (2002) 50 Drake LR 511.
32. See 28 USC 631ff.
33. See 28 USC 63 1(b).
34. See Federal Magistrates Act of 1979, Pub L No 96–82, 3(c), (e), 93 Stat 643, 644–45.
35. See 28 USC 152.
36. See Administrative Office of the United States Courts, The Selection and Appointment of United States Magistrate Judges (2002); Regulations of the Judicial Conference of the United States for the Selection, Appointment, and Reappointment of United States Bankruptcy Judges (as amended, September 2000 and again in August 2001). These regulations structure the process while permitting some variation, district to district in the case of magistrate judges, and circuit to circuit for bankruptcy appointments.
37. For example, Judicial Conference regulations (see n 36 above and accompanying text) include a commitment to confidentiality of materials submitted when individuals are considered for magistrate judgeships and provide for public solicitation of nominees but not for public hearings vetting those nominated).
38. As one local legal paper has opined: ‘the Bankruptcy Court now has the best bench, top to bottom, of any court in the City of Chicago.’ See in the Matter of Grabill 967 F 2d 1152, 1160 (7th Cir, 1992) (Posner J dissenting, citing the Chicago Legal Bulletin of 13 January 1992 at 2).
39. See, eg, Nicohlas L Georgakopoulos ‘Discretion in the Career and Recognition Judiciary’ (2000) 7 U Chi Law School Roundtable 205.
40. See Frederick Schauer ‘Incentives, Reputation, and the Inglorious Determinants of Judicial Behavior’ (2000) 68 U Cinn LR 615 (bemoaning the lack of empiricism on judicial self-interest); Jonathan R Macey ‘Judicial Preferences, Public Choice, and the rules of Procedure’ (1994) 23 JLS 627; Richard A Posner ‘What Do Judges Maximize? (The Same Thing Everyone Else Does)’ (1994) 3 Sup Ct Econ Rev 1.
41. That relationships forged in the hopes of obtaining appointments can threaten independence has been explored in the context of the history of the English judiciary. See David Lemmings ‘The Independence of the Judiciary in Eighteenth Century England’ ch 8 in Proceedings of the Tenth British Legal History Conference, Oxford, 1991 (discussing how, with parliamentary control, judges became increasingly involved in seeking ‘supplementary places and honours’). By examining which individuals were actually selected in Hanoverian England, Lemmings concluded that after the Act of Settlement, more senior judges had closer ties to the governing party than had judges in earlier periods, and that through such ‘policisation’, a good deal of control was imposed.
42. See Appointing Judges, n 8 above, pp 29–31.
43. As introduced in the 1960 s, the title proposed for what became the magistrate position was ‘Assistant United States District Judge’. The Executive Committee of the Judicial Conference of the United States opposed that title. See Statement of Warren Olney and reports from the Judicial Conference Committee on Administration of the Criminal Law, in ‘Federal Magistrates Act: Hearings on S. 995 Before the Subcomm. On Improvements in Judicial Machinery of the Senate Comm. on the Judiciary’, 90th Cong, 241j–245 (1967). Thereafter, when the proposal was made to rename ‘magistrates’ by adding the word judge to their title, objections were raised again. Similarly, in the 1970s. Article 111 judges opposed using the term ‘judge’ in lieu of ‘referee’ in bankruptcy proceedings, and then in the 1980s. opposed the provision of life tenure for bankruptcy judges. See Eric A Posner ‘The Political Economy of the Bankruptcy Reform Act of 1978’(1996) 96 Mich LR 47 at 71–80. Professor Posner argues that Article 111 district judges did so to maintain their own prestige and that they campaigned for ‘trivial’ markers of status, relating to modes of appointing law clerks and pensions, as well as insisting on a cumbersome appellate process to make plain that bankruptcy judges were understood as inferior in status to district court judges.
State judges have also argued against administrative hearing officers being renamed ‘judges’.
44. See Walter Gellhorn ‘The Administrative Procedure Act: The Beginnings’ (1986) 72 Va LR 219 at 232 (describing that “‘Hearing officers” [were] puffed up into “Hearing Commissioners” and … later … into Administrative law judges who sometimes flaunt their robes a bit too obtrusively for my taste’).
45. See generally ‘American Bar Association Report on Perceptions of U.S. Justice System’ (1999) 62 Alb LR 1307 (describing the similarity of attitudes toward state and federal judges); David B Rottman ‘Voters in Judicial Elections: Motivation, Capability, and Trust 4’, paper prepared for the Summit on Improving Judicial Selection, 2000 ( Most Americans are unable to answer questions that speak to fundamental aspects of the judiciary, such as the difference between federal and state courts, the existence of an independent judicial branch of government, and even the manner in which judges are selected in their state).
46. See Reference re: Remuneration of Judges of the Provincial Court of Prince Edward Island and R v Campbell: R v Ekmecic; R v Wickman arid Manitoba Provincial Judges Assn’ v Manitoba 3 SCR 3 (1997); and Robert G Richards ‘Provincial Court Judges Decision - Case Comment’ (1998) 61 Saskatchewan LR 575; Jacob S Ziegel ‘The Supreme Court Radicalizes Judicial Compensation’ (1998) 9 Forum Constitionnel 31; Gerald T G Seniuk ‘Judicial Independence and the Supreme Court of Canada’ (1998) 77 La Revue du Barreau Canadian 381.
47. See Resnik, Judith Judicial Independence and Article 111: Too Little and Too Much’ (1999) 72 Google Scholar SCal LR 657; Judith Resnik ‘Inventing the District Courts of the Twentieth Century for the District of Columbia and the Nation’ (2002) 90 Geo LJ 607.
48. See Resnik, Judith From Cases to Litigation’ (1991) 54 Google Scholar Law & Contemporary Problems 5; Judith Resnik, Dennis E Curtis and Deborah R Hensler ‘Individuals within the Aggregate: Relationships, Representation, and Fees’ (1996) 71 NYULR 296.
49. Judicial elections in states have become more expensive because of the entry of national participants; analysis of the ‘market’ in advertisements demonstrated that funders focused on particular races. See Anthony Champagne ‘Interest Groups and Judicial Elections’, paper prepared for the Summit on Improving Judicial Selection, 2000. As he explained: ‘the continuing nationalization of state judicial elections is further shown by the U.S. Chamber of Commerce's recent efforts through the Institute for Legal Reform to support the election of pro-business judges in Alabama, Illinois, Michigan, Mississippi, and Ohio. The goal is to make both direct campaign contributions and to pay for issue advertising’: p 8. See also William G Kelly ‘Selection of Judges’ (2000, Winter) ABA Judicial Division Record 3 (describing efforts by the Chamber of Commerce and the Trial Lawyers and ‘other interest groups … raking the candidates over the coals’.)
50. See Republican Parry of Minnesota v White 536 US 765 (2002).
51. See Abner J Mikva ‘Judges, Junkets, and Seminars’ (2002, Summer) 28 Litigation 2 (ABA Section on Litigation).
52. The Civil Rights Remedy of the Violence Against Women Act, 42 USC section 13981.
53. See William H Rehnquist ‘Chief Justice's 1991 Year-End Report on the Federal Judiciary’ (January 1991) 23 Third Branch 1 at 3; William H Rehnquist ‘Chief Justices Issues 1992 Year-End Report’ (January 1993) 25 Third Branch 1; William H Rehnquist Remarks at the American Law Institute, 75th Annual Meeting, 1998, pp 13, 17–18.
54. See Judicial Conference of the United States, Ad Hoc Committee on Gender-Based Violence (September 1991). Subsequently, in 1993, after redrafting to take some of those criticisms into account, the Judicial Conference took no position on the question of whether the civil rights provision should be in the statute. In 2000, the Supreme Court ruled, in a decision by the Chief Justice for a five-person majority, that Congress had exceeded its constitutional authority when creating such a provision. See United States v Morrison 529 US 598 (2000).
55. See Jay, Stewart Servants of Monarchs and Lords: The Advisory Role of Early English Judges’ (1994) 38 Google Scholar AmJLH 118.
56. These issues are explored in greater detail in Resnik, Judith Trial as Error, Jurisdiction as Injury’ (2000) 113 Google Scholar Harv LR 924.
57. Resnik, Judith The Programmatic Judiciary: Lobbying, Judging, and Invalidating the Violence Against Women Act’ (2000) 74 Google Scholar SCal LR 269.
58. See Long Range Plan, n 24 above, p 98 (Recommendation 15) (‘The growth of the Article 111 judiciary should be carefully controlled so that the creation of new judgeships, while not subject to a numerical ceiling, is limited to that number necessary to exercise federal court jurisdiction’).
59. In addition, and relying on a long tradition of private interest-based associations, federal judges have organised another group, the National Federal Judges Association, focused most intensely on judicial salaries and benefits.
60. The Long Range Plan, n 24 above, p 94 (Recommendation 10) (‘Where constitutionally permissible, Congress should be encouraged to assign to administrative agencies or Article I courts the initial responsibility for adjudicating those categories of federal benefits or regulatory cases that typically involve intense fact-finding’); p 161 (Recommendation 65) (‘Magistrate judges should perform judicial duties to the extent constitutionally permissible and consistent with sound judicial policy’, and in commentary calling for consideration of expanding the role of magistrates).
61. The Long Range Plan, n 24 above, p 83 (Recommendation 1) (‘Congress should be encouraged to conserve the federal courts as a distinctive judicial forum of limited jurisdiction in our system of federalism. Civil and criminal jurisdiction should be assigned to the federal courts only to further clearly defined and justified national interests, leaving to the state courts the responsibility for adjudicating all other matters’); pp 84–88 (Recommendations 2–5, criminal jurisdiction); pp 88–94 (Recommendations 610, civil jurisdiction).
62. The Long Range Plan, n 24 above, p 88 (Recommendation 6) (‘Congress should be encouraged to exercise restraint in the enactment of new statutes that assign civil jurisdiction to the federal courts and should do so only to further clearly defined and justified federal interests’).
