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15 Judges J. 43 (1976)
Are We Asking Too Much of Our Courts

handle is hein.journals/judgej15 and id is 60 raw text is: ARE WE ASKING TOO MUCH OF OUR COURTS? By SIMON H. RIFKIND In this address a former federal judge and presently a trial attorney of wide experience also considers the question of whether we are placing litigational burdens on the courts which are beyond the institutional capacity of the tribunals and the cranial capacity of the judges. He views with concern movement which has cast the judiciary in the role of problem solvers to society at large instead of delimiting judicial functions to the more traditional role of settling disputes between specific and definite adverse parties who are physically before the court. He explores possible substantive and procedural law changes that may relieve the unreasonable burden on the courts. Fearful that law has become so complicated that it no longer functions as a guide to behavior, he concludes by prophesizing that if we do not stop this process of complication, we shall have to evolve into marsupials, so that each of us will then be able to carry in his pouch not the ancient vade mecum but a live and active lawyer in order to keep him out of trouble. When Roscoe Pound spoke in this city seventy years ago, he chose as his title, The Causes of Popular Dissatisfaction with the Administration of Justice.' When this conference was convened, it was taken for granted that the same title could appropriately be used. Everyone knows that dissatis- faction with the administration of justice continues today. That should not surprise us-Pound termed such dissatisfaction as old as the law. 'Roscoe Pound, The Causes of Popular Dissatisfaction with the Administration of Justice, 40 AM. L. REv. 729 (1906). However, our ability to borrow Pound's title for our deliberations should not mislead us into the belief that we are looking at the same landscape that he had under observation. I venture the opinion that much of today's dissatisfaction springs not from failure but from conspicuous judicial success. The courts have been displaying a spectacular performance; it enjoys a constant Standing Room Only attendance. The cause of complaint is that the queues are getting too long. Many litigants are clamoring for attention. In consequence, there is a growing-and justified -apprehension that: 1. Quantitatively, the courts are carrying too heavy a burden-and probably a burden beyond the capability of mitigation by merely increasing the number of judges. 2. Qualitatively, the courts are being asked to solve problems for which they are not institutionally equipped, or not as well equipped as other available agencies. I do not perceive the role of the panelists-and certainly it is not my role-to invent or reveal the solutions to the problems facing the administration of justice. Rather, this is a place from which, as I perceive it, we are to be encouraged and stimulated to probe deeply-to question and to explore, and to create instruments for further probing and explo- ration. If we are successful, we shall have formu- lated an agenda for reform which will occupy our attention during the next decade. Looking back at Pound's experience, I do not stretch my prophetic capacity too far when I suggest that we shall be fortunate if within the decade we uncover the answers. It will probably take even longer to put them into practice. In these sessions, let us hope that we can at least achieve orientation in a specified direction. We can begin by seeking to determine whether the causes for dissatisfaction with the administration of justice have changed during the past seven decades. I believe that they have. Pound grouped the causes of dissatisfaction with the administration of justice under four headings- those common to any legal system, those lying in the peculiarities of the Anglo-American legal system, those lying in our judicial organization and procedure, and those lying in the environment of our judicial administration, Spring-Summer 1976 Volume 15 43

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