Dean's Address

The second reason has become increasingly insignificant since the passage of the omnibus federal judgeship bill and the appointment of almost 150 new federal district judges. Certainly, this increase in judicial manpower should put the federal district courts in a position adequately to handle the entire civil business, as well as the criminal cases in all districts. That system has traditionally handled removed, or originally filed, diversity cases with no history of substantial imposition upon, or complaint by, its judiciary members. Only the Speedy Trial Act and the various acts of Congress providing for priority handling of miscellaneous civil matters have caused what had threatened to become a serious problem with the federal courts, a problem which, as noted, now has been eased, if not eliminated. Certainly, the interests of the public, as litigants, and the protection of their personal and property rights, transcends any consideration of the convenience of the courts.

Additionally, the increase in the caseloads of the several state court systems as a result of the elimination of federal diversity jurisdiction cannot be cannot be underestimated. Many of these courts already are lacking sufficient judicial manpower, and they lack the cohesive ability peculiar to Congress and the single federal judicial system to bring about anything resembling the judicial manpower increase created by Congress in a single enactment. Yet, the proponents of the abolishment of diversity refuse to recognize that the abolishment would create a problem for state courts. A gain Assistant Attorney General Rosenberg, speaking at the time of the same interview, said:³

"The total number of diversity cases runs over 30,000. They represent about 20% or more of the civil business of the federal courts. If they were all removed -all of them ‑to the state courts, they would fall into systems which in the aggregate have on the order of 8 to 10 million general jurisdiction cases. They would not make anything like a dent; they would be almost de minimis. The argument is made that they would fall heavily upon busy courts, but my impression is that studies have been made to see whether that is so, and my recollection is that they have shown that there would not be any serious overloading of already busy state courts. Thus, on the question of relative workload, the state courts are ever so much more appropriately suited to absorb these cases."

What the foregoing statement completely overlooks is that legislative bodies, both federal and state, have been imposing increasing burdens upon our courts, as more and more legislation carries with it prescribed judicial procedures, or review of other actions. The public itself is looking increasingly to the courts for resolution of many new forms of disputes, resulting from our increasingly industrialized and socialized society, living in an increasingly crowded series of large metropolitan areas, producing new concepts of social, sexual and racial rights and duties. As our society becomes increasingly congested, the environmental impact of accelerated need for housing, sources of energy, such as nuclear power, conservation of resources, and many related matters, all have been thrust upon our judicial system by the public. People turn to the courts for resolution of this vast number of new problems, and expect the courts to fashion novel and broad solutions to them. The modern American judge, because of the ease of access to the courts, and these new types of actions, is no longer merely an instrument in a system of applying established principles of law to the facts of a given case. Instead, he has to attempt to create and implement solutions for such diverse problems as equal educational facilities for all racial groups; the busing of students to achieve such equality; a myriad of such matters historically considered as legislative, rather than judicial in nature.

Thus, our judiciary has increasingly been forced to take on more and more areas of social responsibility. This has caused an erosion of the purely judicial functions of our court, as we have known them, a process which promises to continue and expand, unless we, as advocates, can prevail upon executive and legislative branches of government at all levels to reverse this process, and to assume their proper roles in formulation of social change. It was primarily because of the failure of these branches to carry out their constitutional functions that our courts were forced to enter into these areas.

The process must be reversed. Our courts must be restored to their traditionally judicial functions. Otherwise, we face the risk of ultimately seeing the courts become social arbiters, while legal problems and disputes are relegated to some other form of resolution.

I do not mean to suggest that we should press for the elimination from our courts that increasing body of cases involving individual rights, because the protection and enforcement of those rights is the very cornerstone of our constitutional guarantees. It was an inevitable result of our growing urban society, with all the pressures of living together in a time of shrinking space to individuals and resulting encroachment on the rights of others. As short a time as 50 years ago, our situation was such that, if we did not like our neighbor we could move, and our problems were resolved. Not so today, when we no longer have the capacity to resolve our problems in this fashion. Such human concerns as race, sex and age discrimination will continue to be with us on a growing basis, and must be considered as a fundamental problem, both for the judiciary and for the Bar.

However, at the same time, we must not allow ourselves to lose sight of the other individual rights which have traditionally relied upon our judicial system for their protection and enforcement. As to these, 200 years of experience have made it abundantly clear that the adversary system remains the best method to achieve just and equitable resolution of disputes involving these rights. As Justice Walter V. Schaefer of the Supreme Court of Illinois said at The National Conference on the Causes of Popular Dissatisfaction with the Administration of justice, which was convened in St. Paul, Minnesota, in April, 1976:⁴ 

"The assigned question, whether the adversary system is operating in optimal fashion, immediately prompts another: What is the purpose of the adversary system? The fundamental purpose of that system, as I see it, is the ascertainment of the truth with respect most frequently, to an event which took place in the past. All aspects of the adversary system must be measured, in my opinion, against that objective. There are other peripheral considerations, but the ultimate question is whether the adversary system, as we know it today, is doing the best that it can do to determine the truth with respect to litigated controversies."

Judge Schaefer, having thus stated his premise, proceeded to the conclusion that the use of juries in civil trials today is as outmoded as prehistoric mammals, and his treatise includes such comments as the following:

"The disenchantment of these professional groups [doctors, architects and engineers] stems from the feeling that their cases involve technical questions which are beyond the competence of a lay jury. This feeling has considerable basis. The long interruption in a juror's everyday life, and the minimal compensation, provide great incentive to avoid jury service, an incentive encouraged by the statutory provisions for exemption and excuse from jury service which tend to eliminate from the jury those who are best qualified to serve on it. The feeling also reflects a concern that a jury's award of damages tends to include a large ingredient of sympathy for the injured plaintiff, and a contingent fee for his attorney."

These comments were made by a justice of the highest court of one of our largest, and most litigious states! These are the members of the judiciary to whom we as lawyers look to uphold the adversary system, not to destroy it. Small wonder that members of the public have begun to question the validity of our jury system, in view of comments like these.

Yet, I am willing to wager that no one in this room, given his choice, would prefer to waive a jury and try the case in which his client's rights are involved to a single judge, instead of a jury of his client's peers. Why? Because each of us, citing chapter and verse, can describe the horrors which have befallen unsuspecting clients and counsel in those cases tried to a prejudiced judge. And woe unto the client and counsel who fall into that web. For, as all experienced trial counsel well know, when­ ever a single judge as the trier of fact, reaches an erroneous decision on the facts, there is absolutely no relief available in an appellate court. It is only where the single judge errs as a matter of law that his decision will be reviewed upon appeal, Contrast this with a jury trial, where both the trial judge and the appellate court have both the opportunity, and the right, to review both factual and legal questions.

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