The Future: Scrutinizing the Empirical Case for the Court of Federal Claims

Abstract

The 20th anniversary of the Federal Courts Improvement Act (FCIA) presents an opportunity to reflect upon the unique role of the United States Court of Federal Claims (COFC). The COFC has evolved into a jurisdictional catch-all, rather than a forum that serves a needed purpose. Although public contracts dominate the Court of Federal Claims' docket, the Court plays only a minor role in the field, and mere election of fora does not justify the Court's participation. Hence, this paper offers three reasons to challenge the viability of the Court's current mandate: (1) the Court is not a specialized court; (2) dispersal of the Court's docket would not unduly burden any receiving fora; and (3) because most of the Court's jurisdiction is concurrent and because (empirically) the Court is not the forum of choice, the benefits of forum election are illusory. Ultimately, the paper makes the empirical case that eliminating the Court could enhance efficiency and consistency, while reducing confusion in law and practice.

JEL Classification: H59, K12, K23, K34, K41