The Caseload Conundrum, Constitutional Restraint and the Manipulation of Jurisdiction

46 Pages Posted: 24 Nov 2008

See all articles by Nancy Levit

Nancy Levit

University of Missouri at Kansas City - School of Law

Date Written: November, 21 2008


The quantity of litigation in the federal courts has reached unprecedented heights. While this 'crisis of volume' has attracted the attention of legislators and scholars, the judiciary has been left to divine self-help measures to reduce litigants' use of the federal courts. The federal bench that must manage this caseload explosion includes a cadre of recently appointed federal judges. Many of these judges embrace the New Federalism, an initiative to shift governmental power and responsibility back to the states.

This article posits that the combination of judicial overload and injudicious federalism is operating to shunt certain classes of litigants away from federal courts. New procedural and substantive theories are being created to restrict federal jurisdiction. Federal courts are increasingly using the doctrines of preclusion, preemption, abstention and remand to shuttle cases or decision-making authority back to state courts. Complementing this procedural routing of cases is an expansion of summary procedures and a dramatic reduction in the scope of substantive constitutional rights.

This article questions the propriety of the judiciary's use of administrability concerns in the formulation of jurisdictional theories. While court efficiency appears to be a deserving goal, the current method of its implementation is through a reduction of court access to particular classes of litigants. The article analyzes the concept of administrability and posits that administrative efficiency is actually a value-laden argument for selecting which litigants should be permitted access to federal courts.

This article also critically examines whether the adjustment of jurisdictional theories by the judiciary is either an effective docket-clearing mechanism or a desirable institutional practice. Analysis of the assumptions underlying jurisdictional manipulation and the implications of judicial molding of Article III jurisdiction raises serious separation of powers and fairness concerns regarding the quest for administrative efficiency.

Finally, the article offers a new, access-expansive approach to jurisdiction. The proposed ratchet theory of jurisdiction creates a guiding principle of jurisdictional analysis. If the Constitution operates substantively like a one-way wrench - rights may be expanded but not contracted - a jurisdictional analog is imperative. Federal courts should adopt jurisdictional rules that offer the greatest chance of merits determinations.

Keywords: Litigation, Federal courts, Judiciary, Jurisdiction, Federalism, Federal jurisdiction, Restraint, Judicial overload, Docket-clearing, Access, Caseload

JEL Classification: K10, K40, K41, K43

Suggested Citation

Levit, Nancy, The Caseload Conundrum, Constitutional Restraint and the Manipulation of Jurisdiction (November, 21 2008). Notre Dame Law Review, Vol. 64, 1989, Available at SSRN:

Nancy Levit (Contact Author)

University of Missouri at Kansas City - School of Law ( email )

5100 Rockhill Road
Kansas City, MO 64110-2499
United States

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