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Criminal Case Glut Impedes Civil Suits

Gary Fields and John Emshwiller have this article in the WSJ.

An explosion of criminal prosecutions in the nation's overextended federal courts has left civil litigants from bereaved spouses to corporate giants waiting years for their day in court.

The logjam, prompted particularly by criminal cases related to drugs and immigration, as well as by the proliferation of more-obscure federal criminal laws, threatens the functioning of the nation's judicial system, say some judges and attorneys.

"We need the resources to do both" civil and criminal law, says W. Royal Furgeson, a senior federal judge in Dallas. If decisions on contracts, mergers and intellectual-property rights "can't be reached through quick and prompt justice, things unravel for business."

But everybody needs more resources, so the first thing we should do is look at the federal courts to see what they are doing that can be done by state courts or does not need to be done at all.
► The most obvious target is the use of habeas corpus as a second appeal on issues that have nothing to do with the reliability of the guilt verdict, including the penalty phase of capital cases.  Federal habeas petitions by state prisoners are 7% of the federal court caseload nationwide and up to 17% in some districts, according to King & Hoffman.  Just get rid of the bulk of those cases with the Friendly filter,* reserving habeas for cases with genuine questions of innocence.  In the 1960s, one could make the argument that federal habeas on purely procedural claims was necessary to overcome state court resistance to the Warren Court procedural revolution, but that day is long past.

► Cut down on frivolous civil rights complaints by making the civil rights suit attorneys' fee provision, 42 U.S.C. §1988, symmetrical for plaintiffs and defendants.  That is how the statute reads, but the Supreme Court misconstrued it to put in a bias against defendants.

► Repeal federal criminal laws that make cases federal that should be state or make cases criminal that should be civil.

► Get rid of class actions that produce trivial awards for class members but multimillion dollar fees for the lawyers supposedly representing the class.  If an action nets less than $100 per class member, the lawyers for the class get zip.

* Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142 (1970)

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