In the fractious debate about the civil justice system, the dominant narrative of the Civil Rules Advisory Committee is that federal civil litigation takes too long and costs too much and that pretrial discovery is largely to blame. After repeatedly narrowing the federal discovery rules over the last thirty years, the Advisory Committee has recently proposed yet another round of rules amendments designed to limit discovery. These proposals have generated an unprecedented amount of passionate (and largely negative) public comment.
Strangely, to justify its position that civil litigation is subject to unacceptable delays, the Advisory Committee has not used the government’s own caseload statistics – even those statistics that were instituted in 1990 for the very purpose of measuring “delay.” Nor has the Advisory Committee examined caseload statistics to see whether the proportions of different types of civil cases have changed over time, or how those changes might be relevant to its proposed restrictions on discovery.
This article fills in those gaps. Examining the voluminous publicly-available statistics on the federal courts, I offer a radical interpretation: since 1986, instead of an “explosion” of the civil docket, the opposite has occurred: if not quite an implosion, at least stagnation. For example, the number of new civil cases filed since 1986 has increased a mere 1%, and the number of weighted civil filings per authorized district court judge has actually declined 1% since 1986. It is the criminal docket that has overwhelmed the civil docket, but it is civil litigation that has been the target of endless “reform” efforts.
Moreover, five of the six largest categories of federal civil case types today are those that are typically brought by the “have-nots” of society: individuals pressing tort, prisoner, civil rights, labor, and Social Security claims. Contract cases, the only large category primarily brought by organizations, have fallen to only 9% of civil case filings. Of all litigants in the top three categories of cases, civil rights litigants have the most to fear from the proposed discovery amendments: most federal tort litigation is already under coordinated pretrial discovery in conjunction with multidistrict litigation, and there is little discovery in prisoner litigation. Policy discussions about civil litigation should explicitly consider how proposals would impact the majority of individuals seeking relief in the federal courts.
Moore, Patricia W. Hatamyar, The Civil Caseload of the Federal District Courts (March 7, 2014). University of Illinois Law Review, forthcoming.