Letter to the Editor

Doubtless, there are some disadvantages to federal court which we do not like to discuss publicly.



Most federal judges like to control voir dire and jury selection. Why many of those judges – who themselves may come from state judgeships – feel that way is not clear.



It has been argued that federal judges can pick juries faster than state judges because of the lawyer participation in state courts. That is, generally speaking, not true in my experience. I have tried cases in federal court and state court and experienced lawyers can pick a jury faster than judges.



There are those who believe the verdicts are greater in state court than in federal court. My largest verdict, $16.8 million, was in a medical malpractice action in federal court.



The differences between state and federal court which lawyers and judges usually argue about have little or no relevance and vary from case to case.



The real reasons for keeping diversity jurisdiction remain as they were at the time of the founding of the Republic. I am a great believer in the axiom that, if it isn’t broken, don’t try to fix it.

Diversity Needed

Federal courts do serve as a forum where jurors are drawn from geographically more diverse areas and in some cases, that is quite important. That type of diversity is most important in cases where there are suits between citizens of different states. That is just the reason that federal courts were created to begin with.



Jurors, when called into a federal court, realize the majesty and significance of having to adjudicate disputes between citizens of different states, as well as important federal matters. Judges correctly reinforce that importance and therefore the goal of achieving more uniform justice is advanced.



There are those who believe that state courts could handle the extra cases they would have if federal diversity jurisdiction were abolished. That is not true.



The court system has continuously been the stepchild of an often hostile legislature. There is no reason to believe that the elimination of diversity jurisdiction would mean that the state legislature would become more generous either with judges’ salaries or with their staffs.



Most state judges, certainly at the trial court level, have no more than one law clerk. Federal judges generally have two. While that may not seem like much to most people, the difference can be quite considerable in terms of how quickly important motions are decided.



As a former law clerk to a federal judge myself, I can attest to the fact that staffing and support in the federal court system is heads and tails above anything offered in the state courts.



I agree with those who say that both state and federal courts should not be treated like the tail that wags the dog. It is rather odd and bizarre that we live in a society that will spend as much on one or two B-2 bombers as the entire administration of the federal court system.



Certainly we ought to be spending more money on federal and state courts and less in other wasteful areas. However, we have to deal with reality as it currently exists. And the reality is that the federal courts are set up to handle diversity cases and to assure uniformity in disputes where citizens of different states are involved or where state courts are not so similarly situated, many times through no fault of their own.



There is a difference between how federal and state judges get on the bench in Pennsylvania. Federal judges are appointed by the president, with the affirmation of the Senate. There are those who feel it is “merit selection,” and there are those who feel this is just another political system, rife with favoritism and political machinations of every unsavory sort.



Likewise, there are those who believe that the election of state court judges is a joke, and that the election process in the state courts is really illusory, manipulated by politicians of different stripes.



It is beyond the scope of these remarks to argue about which system is better or why. We have some fine and wonderful federal judges as well as hard-working and dedicated state judges.



The point is, of course, that federal judges who try diversity cases are perfectly able so to do, and most of them do it well.



There are other areas where there is concurrent jurisdiction between state and federal courts. For example, cases brought under 42 U.S. Code Section 1983 can be brought in federal or state court. Most people choose to bring those cases in federal courts because of the greater expertise of federal judges in that field.



Nevertheless, the remedy in state court does exist. Lawyers make the choice and most of them make the right choice for the right reasons.



Most importantly, there is a reason for the distinction between federal and state courts, just as there is a reason for both a state and federal government.



The argument for eliminating diversity jurisdiction reminds me of an argument I once heard at a cocktail party for eliminating state sovereignty. After all, why in this day and age have separate states at all? For that matter, why do we have to have separate counties or separate towns or separate subdivisions of one kind or another?



It is true that we have layer upon layer of government. It is true that the work of the federal government sometimes duplicates what the states do, and the work of the states sometimes duplicates what the federal government does.



The entire question of sovereignty, comity and necessity of the existence of government institutions has been debated for 200 years. Yet in the final analysis, whether one characterizes oneself as a liberal or conservative, we have come to believe that there is an efficacy to having courts, as well as local government, operate at a grass roots level, and to having a coordinative function of government (and its courts) at a more regional and federal level.



I am one of those who opposes Senate Bill 253 because I do not think another layer of federal court bureaucracy is necessary. What is necessary is having an adequate number of federal judges on the trial court and the appellate court levels appointed promptly and having them adequately staffed.

Vacancies the Problem