Judicial cooperation is a means to an end. As we have seen yesterday and today, it takes different forms in the service of different goals—harmonizing the law, for example, through certification or model statutory provisions; preventing operational conflicts through inter-court councils; or promoting the interests of groups of courts through coordinated public information and legislative relations efforts.
Judicial cooperation in three other forms has been encouraged in the United States over the last century. One is enforced cooperation— what U.S. Chief Justice William Howard Taft called “team work” –to relieve docket congestion by assigning judges to serve temporarily on other courts with serious docket problems. That effort has largely been replaced by court-wide and individual techniques of judicial case management. A second form of cooperation is seeking improvement in court operations through bench-bar judicial councils with recommending authority but no implementation authority. That effort has largely been replaced by vesting administrative authority in state supreme courts and chief justices. A third form of cooperation is internal administrative cooperation as a complement to hierarchical administration, which is alive and well.
The story is more about aspirations for judicial cooperation than whether the aspirations were realized, and, if they were, whether the sought-after cooperation produced the results produced the results that proponents sought. It would take much more research than I have devoted to this paper to learn that, and—more important—to learn whether and how that cooperation affected whether a court provided a better form of justice and do so more expeditiously and economically than it would otherwise.
Enforced cooperation: At the turn of the last century, the United States judiciary was largely a patchwork of highly individualistic judges serving in highly decentralized courts, created piecemeal by legislatures and municipalities and struggling to cope with conflicts generated by the industrialization, urbanization, and immigration that were transforming the United States. A Texas state bar association report complained that judges there existed “apart like a row of fence posts” in need of “common leadership.” [i]The federal courts, which had then as now a simple organizational structure, were nevertheless dominated, said U.S. circuit judge Kimbrough Stone, by “[t]he cardinal concept . . .that the territorial jurisdiction of a judge should be definitely defined [and] that he should be strictly confined thereto . . . [E]ach court was an independent unit insulated from administrative control or cooperation.”[ii]
The coalition of lawyers, business people, and social reformers that constituted the turn-of-the-century Progressive Movement in the United States sought to streamline all facets of government and commerce. As to the courts, in addition to changing judicial selection and discipline, the locus of procedural-rulemaking authority, and complicated procedures, they also wanted to eliminate the multiplicity of state and local courts. They wanted, said a 1909 American Bar Association report, to vest the “whole judicial power of each state, at least for civil causes, . . . in one great court, of which all tribunals should be branches, departments or divisions”[iii] with authority vested in an all-judge judicial council to issue administrative orders.
This emphasis on centralized authority, however, obscures the degree to which proponents saw judicial cooperation as a key objective of this structural change. The American Judicature Society, created in 1913 to “promote the efficient administration of justice,” explained that a “unified state court … depends on team work,”[iv] enforced by a chief judicial superintendent—a judge, it stressed—who “would be responsible for failure to utilize the judicial power of the state effectively” and have “power to make reassignments, or temporary assignments of judges to particular branches or divisions or localities as the state of judicial business . . . require[s].”[v]This power would be enhanced by requiring regular statistical reports on court operations. The “almost total lack of statistical data” means that “all attempts to estimate or criticize the system and its products are little more than guesses.”[vi]
These proposals also sought “[d]emocratic control of the entire court.”[vii] The Society’s “Model Judiciary Act,” introduced in 1917, would allow a majority of the judges of the appellate and general jurisdiction trial courts to overrule any rule adopted by the judicial council.[viii] A requirement for annual meetings of judges to consider how the courts and their units are operating” would provide a “means for communication between them and hence . . . esprit de corps. . . .”[ix] And why, the Society asked, “should there be an esprit de corps between the chancellor and the police judge?” Because “their work together constitutes a social and juristic entity. . . . The ultimate responsibility . . . rests finally on all the judges.”[x]
These judicial proposals mirrored (but did not cite, as far as I can tell) broader Progressive Era thinking about organizations. In his 1917 Principles of Scientific Management, Frederick Taylor wrote that “[i]n the past, the man has been first; in the future the system must be first.” Through well-documented time-and-motion studies, “efficiency experts” would find the “one best way” of performing tasks and develop rigid rules for how each worker would perform his specific task. Cooperation was important; “management would work almost side by side with the men, helping, encouraging, and smoothing the way for them.” In “the past,” he added, management “gave the men but little help, and threw on to them almost the entire responsibility as to methods, implements, speed, and harmonious cooperation.”[xi] One hears Taylor’s echo in the Judicature Society’s calls for “standardized output[, which] implies not only expertness on the part of the judges, but also a system which co-ordinates their work so that judicial time and energy will not be squandered.” Analogous to the factory manager was the “chief judicial superintendent,” who like a superintendent in “an efficient commercial house” would “inspect the judicial transactions so as to observe their failures and to direct improvements which may prevent the recurrence of failures.”[xii]
Until the 1940s, no state was willing by statute or constitutional amendment to create a centralized administrative authority in the courts. In the early decades, no state went further than a 1913 Wisconsin statute created a “Board of Circuit Judges” comprising all general jurisdiction trial judges in the state and authorized the chairman of the board to “request”—request, not order—“judges whose calendars are not congested to assist judges whose calendars are congested.”[xiii]
At the federal level, however, Chief Justice Taft persuaded Congress in 1922 to authorize each senior circuit judge (what we now call the chief judge) of the nine regional courts of appeals to assign district judges in the circuit to serve temporarily on other district courts of the circuit, and authorize the chief justice to assign district judges temporarily from one circuit to another, if the judges’ senior circuit judge agreed. Along with this authority, Congress created what is now called the Judicial Conference of the United States, but originally the Conference of Senior Circuit judges. At their annual meetings, the senior judges were to report on the conditions of the dockets in the district courts in their circuits, and which ones needed help.[xiv]
Taft said these provisions would end what he called “the absurd condition . . . under which each district judge has had to paddle his own canoe and has done as much business as he thought proper. Thus one judge has broken himself down in attempting to get through an impossible docket, and another has let the arrears grown in a calm philosophical contemplation of them as an inevitable necessity that need not cause him to lie awake nights.”[xv]
Moreover, the data that would inform plans for temporary transfers of judges would also create peer pressure. He said, in an article entitled, “To Unify Federal Judges,” that publication of docket conditions would induce judges “to cooperate much more readily in an organized effort to get rid of business and do justice.”[xvi]
Judicial councils: When it became clear that state legislatures in the early decades were not going to restructure their courts, reformers lowered their sights to embrace advisory judicial councils to conduct studies and make suggestions. Councils reflected in part the well-received 1909 revision of England’s all-judge Rules Committee to include barristers and solicitors and a larger number of judges[xvii] and in a sense were a response to Benjamin Cardozo’s 1921 call for a “ministry of justice.”[xviii] Councils, usually composed of judges, lawyers, academics, and perhaps legislators, would, in the words of a Massachusetts statute, carry out “the continuous study of the organization, rules, and methods of procedure and practice of the judicial system of the commonwealth, the work accomplished by that system” and report “upon the work of the various branches of the judicial system . . . [and] submit for the consideration of the [judges] of the various courts such suggestions . . . as it may deem advisable.”[xix]
Supporters put great faith in judicial cooperation, even if its purpose was a bit hazy. The Judicature Society in 1921 praised councils as a way that “Courts May Be Coordinated [and] Great Reforms . . .Attained.”[xx]In 1923, bemoaning that “[f]or the most part every judge stands alone and unassisted,” it opined that “[w]e must assume that practically all judges are willing to do their share toward the success of the entire judicial system. … It will only be necessary . . . for the judicial council to indicate what is needed in specific circumstances, after fortifying its policy with statistics.”[xxi] In 1929, the Brookings Institution’s W.F.Willoughby declared—or, more accurately, speculated—that councils had established “acquaintances and feelings of mutual regard . . . between judges who would otherwise have been complete strangers[. A]versions to asking for help have been overcome and more free and generous dispositions toward granting it have developed, with the result that exchange of work and rendition of service directly between judges have greatly increased.”[xxii]
Councils proliferated in the 1920s and 1930s, having been created in over half the states,[xxiii]and the Judicature Society’s journal carried regular reports on their activities. Just as quickly, though, many lapsed into what a supporter called “innocuous desuetude.”[xxiv] By 1941, the Society complained that it could no longer carry reports of council activity because it received their reports so infrequently. Today most have been abolished or withered into inaction. They appear to exist, at least on paper, in at most 15 states, with recommending functions only save in Utah.[xxv]Almost all states now vest administrative authority for the courts (or most of the courts) of the state in the chief justice or the supreme court. The one exception is Utah, where the 14 member judicial council (12 judges, a state bar representative, and the state court administrator) is the chief statewide judicial administration governing body.[xxvi]
Why the councils largely failed goes beyond the sparse resources of which many councils complained.[xxvii]Hopes that voluntary judicial cooperation would thrive if councils simply published reports about problems needing attention were naive in the extreme. In 1936, New Jersey lawyer Arthur T. Vanderbilt, as chairman of the New Jersey judicial council and president of the National Conference of Judicial Councils, saw “the chances of obtaining an improved judicial machinery [through the councils] as rather promising,” but that would happen only if “one or two men can be found who have the knowledge of the adjective law as it exists, the vision to see how procedure can be improved, and the patience and technical skill to bring about such improvements, and if their associates are willing to cooperate with then by way of patient and constructive criticism.”[xxviii]
And, in fact, Vanderbilt soon advocated an approach short on cooperation and long on control.
Cooperation as a Complement to Hierarchy
Reinvigorated efforts to infuse judicial systems with centralized administrative authority began in the federal system. In 1937, President Roosevelt as a part of his famous court-packing plan also asked Congress to authorize the Supreme Court to appoint a “proctor” to superintend the work of the district courts. By most accounts, there were serious backlogs throughout the judiciary. The court-packing plan failed, but Congress, in 1939, created the Administrative Office of the U.S. Courts within the judicial branch and assigned to it the authority, exercised until then by the Justice Department, to seek from Congress and then administer the judicial branch budget. Congress directed it as well to gather statistics on the work of the courts and report them back to each court of appeals, its members sitting as a judicial council. Its statute told the administrative office to perform these tasks “under the supervision of the conference of senior circuit judges,”[xxix] language still essentially in place albeit with a much longer list of duties.[xxx]
The goal, according to the attorney general at the time, was to remedy the situation whereby “not only is each district court a law unto itself in a way but each judge in the district in which there is more than one judge, is practically independent of his colleagues.”[xxxi]Supporters of the bill described the change, not as creating an administrative overlord within the judiciary, but rather “to furnish the Federal courts,” through the statistical reports provided the judicial councils, “the administrative machinery for self-improvement, through which those courts will be able to scrutinize their own work and develop efficiency and promptness in their administration of justice.”[xxxii]Federal judicial cooperation today is reflected in the Conference’s extensive committee system of over 200 members, almost all federal judges, and a system of decentralized administration that leaves a fair amount of administrative authority in the all-judge regional judicial councils of the circuits and the courts themselves.
The states have also vested administrative authority in their courts but on a model very different from that of the federal courts. The chief justice of the United States, then as now, while clearly the principal actor, exercises little direct administrative control over the courts, and the other members of the Supreme Court participate in system-wide governance only as occasional volunteers.
In 1938, the American Bar Association adopted what have become known as the Vanderbilt-Parker standards, after ABA president Arthur Vanderbilt and Chief Judge John Parker of the U.S. court of appeals and chairman of the ABA’s Judicial Administration Section.[xxxiii] Vanderbilt, I should mention, later became Dean of the New York University Law School and helped found one of the co-sponsors of this conference, the Institute of Judicial Administration. The standards contained recommendations for changes in judicial selection and tenure, procedural rule-making, jury selection and management; and pretrial procedure, trial practice, and evidence. Another recommendation was headed “Managing the Business of the Courts.” The Vanderbilt-Parker standards were the “point of origin”[xxxiv] in 1974 and 1976 of the ABA’s “Standards Relating to Court Organization” and “Standards Relating to Trial Courts” and updated versions of them in 1990 and 1992.[xxxv]
The point of reviewing these standards and what they say or don’t say about judicial cooperation is not because they describe how courts actually functioned (then or now) or because, if and when implemented by a state, we have any assurance that they changed judicial performance. We review them with a more modest goal: to identify values thought important by experienced actors within court systems. (The 1938 standards were submitted by a small committee principally of appellate judges. The 1990 version was produced by three appellate judges, four trial judges, two state administrators, and a law professor reporter.) As Chief Justice Marshall made clear, the states differ significantly in how their judiciaries are organized, although over the last 20 or 30 years, they have moved closer to the centrally administered and funded format recommended by the standards.[xxxvi]
The 1938 recommendations on “Managing the Business of the Courts” were a sparse five pages, with four elements—judicial branch control of procedural rule-making; unified courts operating under the superintendence of the chief justice (with authority to transfer judges temporarily to courts needing help) or the chief justice and local chief judges reporting to the chief justice; a judicial council broadly representative of bench and bar to conduct research and develop proposals for rules changes; and a system of judicial statistics.
Vanderbilt, in a lengthy 1949 book–Minimum Standards of Judicial Administration– assessed the degree to which states had implemented all the 1938 standards. In Vanderbilt’s elaborating on the “Managing the Business of the Courts” recommendations, there was no turn-of-the-century talk about cooperation as the means to effective case disposition or allowing the judges of the system to overrule orders of the judicial hierarchy. Vanderbilt wanted to know to what degree states authorized that hierarchy to exercise what he called “control,” both external and internal but with emphasis on external control. A key element of external control was the “action of a state supreme court in assigning a judge of a trial court to a district other than his regular court.”[xxxvii] He was unenthused by the eleven states where no one exercised external control and “the spirit of independence and love of decentralization prevails . . . and reliance is placed entirely on voluntary efforts on the part of the judges to manage the shifts that are required by changes in the judicial caseload”[xxxviii]—“an overburdened judge may ask a judge whose docket is less heavily loaded to assist him temporarily.”[xxxix]
Of those states that authorized some level of “external control,” Vanderbilt’s prime example was New Jersey, where he had labored since 1930 as chairman of the judicial council to amend the state constitution to impose a thorough reorganization on the courts. Governor Frank Driscoll appointed him chief justice when that amendment took effect in 1948. Vanderbilt praised the authority the revision provided him: the chief justice, working with the state court administrator, “has power to and responsibility to supervise and direct the business of all courts, so as to relieve congestion of dockets and utilize the available judges to the best advantage.”[xl]He praised the requirement that “every judge . . . mail to the administrative director a weekly report as to the days on which court was held, the cases and motions heard and disposed of [and those not disposed of], any appointments made during the week, and such other statistical data as [the court administrator] requests,”[xli] and he used those reports to put peer pressure on judges, reminiscent of Taft’s objective 27 years earlier. Judicial councils—the source of administrative authority in the turn-of-the-century proposals—were limited by the Vanderbilt-Parker standards to “research, for the collection of statistical data, and for the drafting of court rules,”[xlii]and Vanderbilt surely knew their days in even that limited role were numbered. [xliii]
What about the “cooperation,” “team work,” “esprit de corps” that populated the early century recommendations? From my read of Vanderbilt’s 60 pages of analysis of “Managing the Business of the Courts,” the word “cooperation” appears once and it was not about judicial cooperation but rather “the valuable cooperation” of the bar and public could provide to the judicial council.[xliv]
Why the change in tone—control trumping cooperation? One reason is that appeals to judicial cooperation in the council movement had not achieved much. Vanderbilt’s approach—and he was the intellectual leader of the 1940s court reform establishment—was quite likely due as well to his 17 year battle to change the New Jersey court system, one of the most decentralized, procedurally archaic, and patronage-infested in the country, certainly among industrialized, urbanized states. Jersey City Mayor Frank Hague, the epitome of an old-style urban political boss, led the resistance to constitutional change so he could retain control of the courts in Hudson County.[xlv] It is not surprising that Vanderbilt and others in the 1930s and 1940a emphasized the need for stern top-down judicial control of judges and staffs.
The more recent ABA standards, while continuing to insist on vesting administrative authority in the state chief justice or Supreme Court, complement that recommendation with an emphasis on cooperative policy development. A black letter standard headed “[c]ooperation among court units” calls on “the separate geographic units of the trial court [to] make arrangements to cooperate in administrative problems that concern more than one district or that can be handled most efficiently on a regional basis.” The commentary to this section observes that the need for central administrative authority over trial courts “depends in part on the extent to which the trial courts can effectively coordinate their own activity.”[xlvi]Within each court as well, the standards stress the importance of chief judges vested with administrative authority but encourage as well “[r]egular meetings of the judges [to] permit exploration of common problems and measures for improvement of court procedures and management techniques, and provide a means for renewing professional solidarity and mutual commitment.”[xlvii]
And a point of similarity running through recommendations from for the last 100 years has been the importance of data with which to measure performance, as reflected in the current ABA standards embrace of time and clearance standards against which to measure performance.[xlviii]
This brief review of aspirations for judicial cooperation in the United States suggests at least two lessons.
The first is the need for modesty, of realizing that judicial structures and procedures that we prize today may seems as quaint to our descendants as those of our ancestors seem to us. Roscoe Pound, William Howard Taft, Arthur Vanderbilt, three pretty smart people, and many others, thought one of the best ways to relieve trial court docket congestion was to put judges on trains for temporary duty in congested courts, whether as a form of enforced cooperation or simply because they were told to do so. In the federal system, district judges and their chief judges balked at temporary assignments, and the bench and bar in the districts to which they were assigned often provided a chilly reception. By 1931, the Judicial Conference, as described by Peter Fish, “‘deemed undesirable . . . except where absolutely necessary,’ service by judges outside their own circuit,”[xlix]and in 2009 (and likely in the 1920s) visiting judges—inter- and intra-circuit—account for less than one percent of federal district court dispositions.[l] Obviously, temporary designations continued to appeal to state chief judges such as Vanderbilt as late as 1949, and state courts no doubt use visiting judges to some extent, perhaps especially now that economic pressures have made it difficult to fill vacant judgeships.
Temporary designation, however, does not occupy the prominent place in the current standards that it did in 1938. Although the 1990 standards recognize “[a]ssignment of judges and other personnel from one district to another in emergency situations and response to shifting caseloads”[li]as one object of trial court cooperation, the commentary ignores that and stresses instead the value of cooperation to avoid calendar conflicts for lawyers who practice regularly in more than one court. Throughout the state and federal courts, emphasis today is on the range of case calendaring and management techniques they have developed.
A second lesson, though, is that sometimes the conventional wisdom is right. The ABA standards have been criticized, and reasonably so, on the grounds that the measure of an effective court system is not whether it comports with structural and procedural forms advocated by admittedly experienced judges, court administrators, and lawyers. The measure of an effective court is how effectively it performs—the degree to which it resolves cases fairly, economically, and expeditiously, with due regard for transparency and respect for court users. Pursuant to that reasoning, the National Center for State Courts developed a series of Performance Standards—statements of how a well-functioning court performs, regardless of its structure.[lii] (Performance standard 2.1, for example, says “The trial court establishes and complies with recognized guidelines for timely case processing while, at the same time, keeping current with its incoming caseload.”) The National Center has more recently collapsed these lengthy standards into a simplified set of “CourTools”—10 ”core measures” of court performance, such as “Access and Fairness” and “Time to Disposition.”[liii]Partly in response to a 2005 Conference of State Court Administrators call for state courts to implement performance measures,[liv]individual courts and entire state court systems—such as Utah—have used the CourTools, often placing the resulting scores on their public websites.[lv]
In a 2007 path breaking work, Trial Courts as Organizations,[lvi]the National Center’s Brian Ostrom and his colleagues looked for links between a trial court’s culture—put simply, “[t]he way things get done around here” [lvii]—and its performance, and in doing so, by my reading, their conclusions seem to bolster the ABA standards. They identified four court “cultural archetypes”—communal (which prizes collegial decision-making[lviii]), networked (emphasizing creativity and innovation[lix]), autonomous (limited administrative controls[lx]), and hierarchical (where “the chain of command is clear”[lxi]).
Working with 12 criminal felony trial courts in three states, they assessed the “performance consequences”[lxii] of the court’s primary culture in several of the Trial Court Performance Standards areas. In terms of time to disposition, they expected and found that hierarchical courts are more likely than others to meet the ABA’s 1987 Time Standards for criminal felony clearance rates.[lxiii]When they asked judges and administrators which cultures they preferred—i.e., in what ways they might want their courts to do business differently—they expected and found, as to managing cases and dealing with change, that judges and administrators generally preferred the aspects of hierarchical culture—doing business “on the basis of clear and orderly rules, expertise, and modern management techniques.”[lxiv]As to judge-staff relations and internal organizations, they found a preference for networked cultures, in which business is done “on the basis of inclusiveness … [b]ecause judges and court administrators have ongoing relationships and must consult each other to discuss ways to implement policies, allocate resources, and configure court staff” and avoid personnel conflicts.[lxv]For court leadership, they found that judges and administrators favored a communal culture—doing court business on a “collegial basis, where trust and mutual respect reign automatically.”[lxvi]Finally, they