Mahon Lecture

Abstract

The law of federal courts is now a free-standing subject in every law school curriculum, taught in law schools as federal jurisdiction and in distinct courses as federal practice and civil procedure. So much of this is recent. After all, the Federal Rules of Civil Procedure which fueled a sea of change in American litigation are only 65 years old. Its youth in the law is easily demonstrated. For example, the doctrine of standing did not appear in anything like its present form until after World War II, responding as it did to the growth of public law and the expanded use of private litigation to enforce federal norms. We saw the traditional bi-polar suit by a plaintiff against a defendant complaining of breaches of duty by private persons, joined by suits by private persons complaining of state and federal government failures to comply with the law. These newly emerging public lawsuits typically sought orders from federal courts directing state and federal officials to obey federal law and remedies for the injuries suffered by those violations. I point to these as examples of the "law" of federal courts with which we have busied ourselves, along with a myriad of other "reforms" and concerns, such as costs of civil litigation and the role of judge and jury in district courts. In this important work with the trees, we risk missing the forest, whistling past macro changes in the role of federal district courts and courts of appeal in turn. When we widen our lenses, we find disturbing trends, such as the decline of trials with federal trial courts looking like European courts. We also find a suspiciously parallel flow of dispute resolution to the administrative agencies.