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14 Miss. C. L. Rev. 349 (1993-1994)
Rethinking the Federal Court System: Thinking the Unthinkable

handle is hein.journals/miscollr14 and id is 357 raw text is: RETHINKING THE FEDERAL COURT SYSTEM: THINKING THE UNTHINKABLE* Charles W Nihan** Harvey Rishikof*** To paraphrase the steward Malvolio in Twelfth Night, Be not afraid of change: some are born to change, some achieve change, and some have change thrust upon them.1 At the present time the federal judiciary, in a rare and somewhat unprece- dented public display, is engaged in a spirited debate over its appropriate size.2 Three general factions or schools have emerged in this debate: some proponents advocate a cap on all federal judges at 1000;3 others would prefer at the very least an immediate doubling of the current number of federal judges with additions as required;4 while a third group of advocates prefer a slow growth approach tied to a restricting of federal jurisdiction.' This rather arcane issue of judicial size, that normally would be relegated to technical government reports, has recently been featured in leading law reviews,6 major newspapers,7 and other public forums.8 * This Article relies and draws upon the outstanding work and reports written by the professional staff of the Long Range Planning Office including Jeffrey A. Hennemuth, Esq., Richard B. Hoffman, Esq., and William T. Rule II, Ph.D. The views and opinions expressed in this paper are those of the authors alone and should not be attributed to either the Administrative Office of the United States Courts or the Judicial Conference of the United States. ** Charles W. Nihan, Esq., Chief of the Long Range Planning Office of the Administrative Office of the United States Courts. *** Harvey Rishikof, Esq., Supreme Court Judicial Fellow, Instructor Harvard University. 1. WILLIAM SHAKESPEARE, TWELFTH NIGHT act 3, sc. 4. 2. GORDON BERMANT ET AL., FEDERAL JUDICIAL CENTER, IMPOSING A MORATORIUM ON THE NUMBER OF FED- ERAL JUDGES (1993) [hereinafter BERMANT]; Jon 0. Newman, 1,00Judges- The Limit for an Effective Federal Judiciary, 76 JUDICATURE 187 (1993); Jon 0. Newman, Restructuring Federal Jurisdiction: Proposals to Preserve the Federal Judicial System, 56 U. CHI. L. REy. 761 (1989); Richard A. Posner, Will the Federal Courts ofAppeals Survive Until 1984? An Essay on Delegation and Specialization of the Judicial Function, 56 S. CAL. L. REV. 761 (1983); Stephen Reinhardt, Too Few Judges, Too Many Cases, 79 A.B.A. J. 52 (Jan. 1993); Gerald Bard Tjoflat, More Judges, Less Justice, 79 A.B.A. J. 70 (July 1993). 3. Jon 0. Newman, 1,000 Judges-the limit for an effective federal judiciary, 76 JUDICATURE 187, 187 (1993); Jon 0. Newman, Restructuring Federal Jurisdiction: Proposals to Preserve the Federal Judicial System, 56 U. CHI. L. REV. 761 (1989); Richard A. Posner, Will the Federal Courts of Appeals Survive Until 1984?An Essay on Delegation and Specialization of the Judicial Function, 56 S. CAL. L. REv. 761, 762-67 (1983). 4. Stephen Reinhardt, Too Few Judges, Too Many Cases, 79 A.B.A. J. 52, 53 (Jan. 1993). 5. Gerald Bard Tjoflat, More Judges, Less Justice, 79 A.B.A. J. 70 (July 1993). 6. 104 YALE L.J. (forthcoming 1994); 47 SMU L. REv. (forthcoming 1994); William H. Rehnquist, Seen in a Glass Darkly: The Future of the Federal Courts, 1993 Wis. L. REv. 1; William H. Rehnquist, A Plea for Help: Solutions to Serious Problems Currently Experienced by the Federal Judicial System, 28 ST. Louis U. L.J. 1,7-10 (1984). 7. Jon 0. Newman, Are 1, 000 Federal Judges Enough ? Yes. More Would Dilute The Quality, N.Y. TIMES, May 17, 1993, at A 17; Stephen Reinhardt, Are 1,000 Federal Judges Enough ? No. More Cases Should Be Heard, N. Y. TIMES, May 17, 1993, at AI7. 8. See, e. g., ChiefJustice's 1991 Year-End Report on the Federal Judiciary, THE THIRD BRANCH (Admin. Of- fice of the United States Courts, Washington, D.C.), Jan. 1992, 1, at 1. 349

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