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TRIAL AS ERROR, JURISDICTION AS INJURY: TRANSFORMING THE MEANING OF ARTICLE III Judith Resnik TABLE OF CONTENTS I. A "FAILURE OF THE SYSTEM"................................................................................................ 925 II. JUDICIAL TRANSFORMATIONS OF THE DAILY PRACTICES OF JUDGING ........................... 933 A. ProceduralAspirations and Sources ................................................................................. 935 B. A CorporateStructure, Large Scale Litigation,and M ore Cases .................................... 937 C. Teaching Judges.......................................................................................................... 943 I. AN INSTITUTIONAL VOICE ................................................................................................. 949 A. The Infrastructure.............................................................................................................. 949 B. Collective Concerns............................................................................................................ 957 i. Changing Attitudes About Authority .......................................................................... 958 2. Redefining the W ork Appropriate for Life-Tenured Judges ....................................... 967 (a) "Important" Cases .................................................................................................. 968 (b) Identity by Association ........................................................................................... 970 (c) Identity by Distinction ............................................................................................ 974 (d) The Quantities and Kinds of Federal Judges ....................................................... 983 3. Blurring Roles ............................................................................................................... 992 IV. READING A CENTURY'S CHANGES ...................................................................................... 996 A. Generativity....................................................................................................................... 996 B. Diffused Judging ................................................................................................................ 999 C. EssentializingJurisdiction .............................................................................................. 1003 V. REREADING ARTICLE II ................................................................................................... 0 A. Vulnerability..................................................................................................................... ioh B. Irrelevancy....................................................................................................................... 1015 VI. CACOPHONY, FOR A PECULIAR BRANCH OF GOVERNMENT .......................................... 1020 A. Representation................................................................................................................. 1021 B. Substantive Goals ............................................................................................................ 1022 C. Forms of Action ................................................................................................................ 1024 VII. THE ICONIC COURTHOUSE ............................................................................................... 1031 924 HeinOnline -- 113 Harv. L. Rev. 924 1999-2000 TRIAL AS ERROR, JURISDICTION AS INJURY: TRANSFORMING THE MEANING OF ARTICLE III Judith Resnik* I. A "FAILURE OF THE SYSTEM" In the fall of 1994, the Los Angeles Federal Bar Association held a meeting for some hundred lawyers to discuss then-recent changes to the rules that govern the processes of litigation in the federal court sys- tem. At that time, of one hundred civil cases commenced in federal court, about eight started trial; the remaining ninety-two ended in other ways.' Introducing the program, a federal district judge stated that he regarded the eight percent trial rate as evidence of "lawyers' failure." * Arthur Liman Professor of Law, Yale Law School. My thanks for help in thinking about the issues discussed here to Dennis Curtis, Vicki Jackson, Bruce Ackerman, Lincoln Caplan, Owen Fiss, John Frank, Deborah Hensler, Lisa Kloppenberg, John Langbein, Henry Monaghan, Edward Purcell, Tanina Rostain, Eugenia Toma, Elizabeth Warren, Stephen Yeazell; to Eric Biber, Steven Engel, Kim Demarchi, Megan Johnson, Matthew Kutcher, Kristin Martin, Eric Shumsky; to Richard Arnold, Martha Craig Daughtrey, Gladys Kessler, Brenda Murray, Ellen Peters, Michael Ponsor, Philip Pro, David Tevlin, William Young, and Douglas Woodlock; and to participants at faculty workshops at Yale Law School and at the University of Miami School of Law. Special thanks is owed to staff members at the National Archives, the Federal Judicial Cen- ter, the Administrative Office of the U.S. Courts, the State Justice Institute, and the Sterling Li- brary and especially to Gene Coakley of Yale Law School's library, for all their generous assis- tance in making source materials available. An earlier version of this essay was given as a lecture at the inauguration of the Arthur Liman Professorship, the chair of which I am the first holder. I have the honor of invoking Arthur Liman's name in conjunction with my own. I Estimates vary depending on the ways in which data from the Administrative Office of the U.S. Courts (AO) are evaluated. The eight percent figure is derived by combining, for the year ending in September of 1994, the cases "terminated during/after trials" (7,910) with those in which trials were "completed," (10,473) and then using the numbers of cases "commenced" (236,391) in the same year as the baseline, resulting in a 7.8% trial rate. See ADMINISTRATIVE OFFICE OF THE U.S. COURTS, 1994 ACTIVITIES OF THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS app. at 1-8i tbl.C-4A, app. at I-go tbl.C-7, app. at 1-48 tbl.C. Of course, the trials held in 1994 may not be in cases commenced in that year. While about half of the cases "close within 9 months of filing," the rest remain pending longer. JAMES S. KAKALIK, TERENCE DUNWORTH, LAURAL A. HILL, DANIEL MCCAFFREY, MARIAN OSHIRO, NICHOLAS M. PACE & MARY E. VAIANA, AN EVALUATION OF JUDICIAL CASE MANAGEMENT UNDER THE CIVIL JUSTICE REFORM ACT 158-64 (RAND 1996) [hereinafter RAND JUDICIAL CASE MANAGEMENT EVALUATION]. The average time from filing to disposition in cases tried was about 16 months. See ADMINISTRATIVE OFFICE OF THE U.S. COURTS, JUDICIAL BUSINESS OF THE UNITED STATES COURTS at tbl.C-io (1994). Therefore, the eight percent rate provides a snapshot of the likelihood of trial rather than describing which cases went to trial. HeinOnline -- 113 Harv. L. Rev. 925 1999-2000 HARVARD LAW REVIEW [Vol. 113:924 That got my attention: a person whose title was "trial judge" equated going to trial with failure. His relevance rests on the fact that he is not alone. Found in reported decisions is the phrase "a bad set- tlement is almost always better than a good trial."2 Found in rules and policy statements of the federal judiciary are increasing obligations of judges to press parties toward settlement. For example, a local rule in the federal trial courts of Massachusetts requires a judge to raise the topic of settlement at every conference held with attorneys. 3 Moreover, this growing law of settlement is not simply hortatory. Court rules and statutes require litigants and their lawyers to engage in a variety of settlement processes; 4 penalties flow from failure to comply.s The internal rhetoric and rules of the federal judiciary stand in contrast to discussions in law, politics, and popular culture about the federal judiciary. Since the country's founding, the federal courts have been identified as an important participant in national governance. The United States Constitution sets the judiciary apart as a distinct branch of government charged with exercising judicial power under a 2 See, e.g., Hispanics United v. Village of Addison, 988 F. Supp. 1130, 1149 (N.D. Ill. 1997) (citing In re Warner Communications Sec. Litig., 618 F. Supp. 735, 740 (S.D.N.Y. 198o)) (also de- scribing the phrase as a "familiar axiom"); Strong v. BellSouth Telecomm, Inc., 173 F.R.D. 167, 172 (W.D. La. 1997) (observing that "[i]n this case, I could hold my nose and accept the settlement, after all, it is said that a bad settlement is better than a good trial"); Weiss v. Mercedes-Benz of N. Am., Inc., 899 F. Supp. 1297, 1301 (D.N.J. x995) (approving a "coupon" settlement and comment- ing that it was not "bad" given the "arm's length negotiation.between two very capable parties"). 3 See DIST. MASS. LOCAL R. 16.4(A) CThe judicial officer shall encourage the resolution of disputes by settlement or other alternative dispute resolution programs."); id. 16.4(B) ("At every conference conducted under these rules, the judicial officer shall inquire as to the utility of the parties' conducting settlement negotiations .... "). This rule stemmed in part from congressional encouragement of such approaches through the 199o Civil Justice Reform Act (CJRA), 28 U.S.C. § 471 (iggo), which requires each district to implement a "justice expense and delay reduction plan" to "facilitate deliberate adjudication of civil cases on the merits, monitor discovery, improve litigation management, and ensure just, speedy, and inexpensive resolutions of civil disputes"; this legislation
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