Studies of adjudicative promptness have mostly offered system-level diagnoses and prescriptions. This essay develops a judge-level approach to the issue. Decisions that judges make all day long require them to weigh promptness against accuracy and fairness. For the most part, judges make such decisions based on habitual practices and learned instincts. They should second guess their practices and instincts when they find themselves “backlogging,” i.e., accruing dynamically worsening collections of too-old cases.
I. The Promptness Routine
The concern that the wheels of justice turn too slowly is many hundreds of years old.1 Most of the scholarship about this concern has taken a system-level perspective and has offered system-level proposals. Some commentators have advocated for more funding, more circuits, new judgeships, better judges, and larger judicial staffs.2 Others have suggested reassignments of some types of cases from one type of court to another.3 Still others have proposed modifications to case-classification methods or other internal operating procedures.4
Adjudicative promptness as a goal is also embedded in the work of individual judges. Judicial codes of conduct recognize this point. The Code of Conduct for United States judges directs judges to “dispose promptly of the business of the court.”5 Other codes provide similar instructions.6
These directives pose challenging demands to even the most hardworking judges. The aspiration to promptness figures into a large share of the dilemmas that judges face all day, every day.7 The next few paragraphs outline a rough sketch of those dilemmas, sorted into three categories.
Perhaps the most obvious category focuses on the routines of the judge’s practices in chambers. Judges must choose among various possible systems for tracking dockets, preparing for hearings, and drafting opinions. Each such choice may impact the speediness of the judge’s work.8
Another category consists of procedural rulings that perceptibly implicate the aspiration to promptness, mixed with litigants’ competing interests. Such rulings tend to revolve around expenditures of time by the court and the parties. Example issues include: whether the court should hear oral arguments,9 the time limits imposed on trial presentations (if any),10 and the length of the discovery period.11
Lastly, many issues presented to judges as focused on other considerations may also affect the speed of a case’s progress. Many disagreements about the procedural or evidentiary scope of a case may land in this category. Some examples include: the number of times a plaintiff should be allowed to amend the complaint,12 the number of trials that should be held on somewhat-related claims,13 the number of depositions the parties should be authorized to take,14 the amount of corroborative evidence they should be allowed to offer,15 and the extent to which they should be allowed to reexamine their witnesses after the original direct and cross.16
How do judges incorporate the aspiration to promptness into their practices and rulings? I propose a simple model predicated on the assumption that judges try to put their time and resources to good use. All else being equal, such judges will (and should) make choices that lengthen a case’s lifespan whenever the marginal contributions of those choices toward accuracy and fairness outweigh the attendant marginal delay.17
The codes of conduct offer support for this formula. Those published by the American Bar Association and the United States Courts both direct judges to reduce “unnecessary” delays.18 These formulations recognize that some delays are necessary, i.e., too valuable to be avoided.19 A more specific acknowledgement of this idea is the rule that the federal courts of appeal may submit matters on the briefs when “the decisional process would not be significantly aided by oral argument.”20
Note the important caveat, “All else being equal.”21 Many of the delay-impacting choices that judges face are controlled by considerations not focused on delay. In the case of a quarrel over case-lengthening depositions, the judge’s ruling may turn entirely on the costs to the witnesses or the attorneys.22 I deemphasize such factors to sharpen the discussion.23
Also note that I have named both “accuracy” and “fairness” as benefits to be weighed against delay. That nuance is meant roughly to draw procedural justice into the mix.24 It is important for courts to give parties substantial opportunities to be heard, whether or not those efforts will drive the end result.25
Accuracy and fairness alike are goals that cannot be achieved perfectly in the real world. A judge committed to 100% accuracy or unlimited opportunities to be heard would struggle to close any discovery period, discharge any witness, or release any opinion. Like accident avoidance, judicial accuracy and fairness are goals that we may think we want to perfect only when we disregard the costs of that aspiration.26
Like most strict cost-benefit equations, the one I have proposed is a theoretical model, not a psychological account. Few judges will attempt to quantify the truth-finding or delay-inducing consequences of a marginal deposition or oral argument.27
Many judges may agree that the formula I have described is roughly consonant with their attitudes. But on a day-to-day level, they implement that formula subconsciously, relying on their longstanding habits and learned instincts.28 They trust in an internal clock to tell them, “This deposition is one too many,” “This extra trial date would be unfruitful,” or “I have already read enough cases about this rule.” I ask next when judges should wonder whether their time-related habits and instincts are misfiring.
II. Signs of Busyness and Trouble
Discussions of litigation’s slowness often revolve around the concept of “backlogs.”29 I try in this Part to clarify the subtle differences among three backlog-related concepts.
The first concept is “caseload.” Even the most sizable docket of pending cases may be an untroubling sign of a busy court at work.30 At the risk of belaboring an intuitive point, consider the analogy to a manufacturer of customized goods. That business hopes to maintain a regular flow of orders. At any given time, some of its orders have been filled, whereas others remain in progress. Purchasers understand that deliveries will not be instantaneous.
Likewise, an imposing number of pending cases may equally reflect either a struggling court or one that is busy but thriving. According to the United States Courts, as of September 2024, there were 580 cases pending in the District of Maine and 5,561 pending in the District of Massachusetts.31 These datapoints do not necessarily mean that the District of Massachusetts is in worse shape.
A court is living with a problem when its caseload includes a sizable “backlog,” understood as the collection of cases that are older than we would like.32 The parallel to a backlog in the analogy of the manufacturer is a list of overdue orders.
Court cases typically do not come with “deliver by . . .” deadlines. Each case may differ significantly in terms of the investments of time that it requires.33 It may be hard to assess whether each case has outlived its appropriate duration. Efforts to make such assessments are an element of the habitual, instinctive work that judges undertake as part of their continual efforts to remain prompt.34
In some contexts, formal authorities do impose limits on the appropriate durations of cases or case phases. These limits may be either enforceable or advisory.35 They may tend to be relatively insensitive to case-specific nuances. In Canada, the Judicial Counsel has announced an expectation that “judgments should be delivered within a maximum of six months after hearings, except in special circumstances.”36 The federal Speedy Trial Act (“STA”) calls for federal criminal trials to commence within seventy days of arraignment, though the statutory exceptions may have swallowed that rule.37
Perhaps the most familiar measures of judicial backlog are those introduced by the federal Civil Justice Reform Act (“CJRA”).38 Formally speaking, the CJRA imposes a data-dissemination rule: the federal court system must publish semiannual lists of motions pending for six months, bench trials pending for six months, and cases pending for three years.39 But these requirements telegraph the timeframes that Congress views as typically appropriate.40
A backlog is the group of too-old cases collected in a court’s caseload at a specific point in time.41 It is an inherently static concept. A backlog may be painful, but it is not necessarily a sign that a court’s work is now proceeding at a less-than-optimal pace. It reflects the culmination of past events as well as current practices.
The logical gauge of whether a court’s current adjudicative pace is cause for concern is a dynamic measure: “backlogging,” meaning the rate at which a court’s backlog is increasing.42 Any ratio of more than 1:1 between present and past backlogs reflects a backlogging trend.
The information reported by the federal courts under the CJRA already includes measures of both backlogs and backlogging. The latter idea is reflected in the “percent changes” reported between the numbers of each biannual report and its predecessor.43 For example, as of March 2024, the district courts of the Fifth Circuit maintained a backlog of 11,005 three-year-old cases.44 The district courts of the Fourth Circuit had only 1,404 such cases.45 But the backlog in the Fifth Circuit had shrunk by 4.3% compared to the report of six months earlier, whereas the smaller backlog in the Fourth Circuit had grown by 18%.46 A focus on backlogging would mean that the Fourth Circuit’s courts may have more reason to worry about their pace.
It should be easy to see that a backlogging trend will follow whenever a court’s ratio of newly initiated cases to newly terminated cases is more than 1:1. Obviously, the flows of initiations and terminations will fluctuate. Initiations hinge on factors outside the court’s control.47 Terminations depend partly on the court, but partly on other factors, such as party-specific incentives to settle.48 A backlogging trend over six months or a year easily may reflect temporary pressures.
But over a representative period, a consistent trend of initiations outpacing terminations will drive up first a court’s caseload and then its backlog.49 Complicating matters is the fact that a docket may become harder to manage the larger and older it is.50 Growing backlogs may consequently demand growing amounts of administrative attention, leaving less and less judicial time for hearings, trials, orders, and opinions. Backlogging has an innate tendency to spiral out of control.
To prevent their caseloads and backlogs from mushrooming, courts need to remain at or below the 1:1 initiations/terminations ratio. Courts achieving that ratio may be said to be “keeping pace.”51 Note that in an already-backlogged court, a pace-keeping ratio is the only way to keep the backlog steady; to maintain a non-growing backlog, a court needs to work just as fast as it would need to work in order to maintain no backlog at all.52
The challenge of keeping pace with the flow of incoming cases is typically daunting. But consider the starkness of the fork in the road. A pace-keeping court is primed to remain up-to-date indefinitely; a court whose initiations outnumber its terminations will inevitably develop a backlog, which will worsen progressively with every passing period of time.
In short, large caseloads and static backlogs are artifacts of busyness and history; judges have reason to question the optimality of their paces when they find themselves backlogging. I turn next to the lines of analysis that backlogging judges may wish to undertake.
III. Adjustments and Dilemmas
Backlogging will tend to worry judges precisely because the aspiration to promptness is built so deeply into the adjudicative project. A backlogging trend means that more and more of a judge’s cases are extending further and further beyond their optimal lifespans. Self-reflective backlogging judges will wonder whether the delays in their cases are still outweighed by the attendant gains in accuracy and fairness.
One set of questions that backlogging judges may ask themselves is whether any of their usual practices may be replaced by time-saving measures without material sacrifices in accuracy or fairness. The codes of conduct might have this type of adjustment in mind when they tell judges to combat “dilatory practices” and “avoidable delays.”53
Some of the pertinent scholarship presents ideas that may be interpreted or reinterpreted as proposing such costless solutions. Economies unaccompanied by harm to accuracy or fairness might arguably result from remote hearings,54 firm dates and deadlines,55 mediation programs,56 note taking,57 standardized document templates,58 dispositions without oral argument,59 dispositions without briefing,60 and succinct or unpublished opinions.61
But it is not easy to see these suggestions as silver bullets. It may not even be clear whether each suggestion would save time, and any savings may vary from judge to judge and from case to case. Perhaps this set of uncertainties is resolvable. But questions about whether various measures are truly harmless—e.g., whether fairness demands an oral argument62—may be harder to answer.
Analogous difficulties inhere in the next line of reflection that a backlogging judge may pursue. I have suggested that judges continually make rulings and other choices that do involve tradeoffs between time expenditures and accuracy or fairness. A modification of a judge’s practices with respect to these types of choices would not be costless. What’s more, as a practical matter, the judge will not be able to say with confidence whether the costs are worth paying. It is effectively impossible to gauge the contributions toward accuracy and fairness of another month of discovery, another re-cross, or another cite-check.
These ambiguities do not necessarily foreclose the possibility that judges, when they realize that they are backlogging, might properly attempt to adjust their promptness-related instincts. Some backlogging judges may already be making optimal promptness-related calls. But others may be placing less value on promptness than justice or society would like. My final thesis is that backlogging judges should devote time and energy to considering whether they are in the latter category.
The essential point is that a judge’s caseload reflects the institutional setting’s expectations. Each legislature and court system develops its own views of the caseloads that judges should shoulder.63 Judges understand that backlogs may be viewed as failures to live up to the surrounding system’s hopes.64
Like individual judges, legislatures and court systems know that perfection is unrealistic. They understand the tradeoffs between promptness and countervailing values. Their judgments about appropriate caseload sizes entail implicit views about the degrees of accuracy and fairness that judges should be striving for.65 It follows that a backlogging judge may be giving litigants more in other benefits but less in promptness than the system would like. To the extent that legislatures and court administrators are democratically elected or appointed, their judgments tend to reflect broader societal choices.
Now consider a complication. Judges generally do not decide whether the political system will appoint new judges or adopt other caseload-alleviating measures.66 But the speediness or slowness of a judge’s docket may indirectly encourage or discourage systemic interventions. Should the prospect of an indirect impact on systemic resource allocations play into a judge’s promptness-related calculus?
A flipside of the same complication runs as follows. Adjudicative efficiency at the judge or court level may tend to draw increased numbers of cases to them.67 Logically speaking, another spiraling dynamic could follow. Every effort by judges to adjust to the system’s expectations by increasing their speed and restraining their accuracy and fairness may trigger a shift in the system’s expectations—as reflected in new caseloads—toward even greater speed and even further reduced accuracy and fairness.68
The tricky interrelationship between judges and the systems in which they operate leaves open the possibility that, in some circumstances, a system may be asking judges for reductions in accuracy and fairness that judges cannot and should not accept. The points made in this essay do not support any imperious across-the-board diagnoses. A judge who considers a given deposition, exam, or research assignment to be absolutely necessary is probably right.
This essay’s proposals live in the marginal territory of judgment calls. But that territory may be large: most judges, in a large universe of promptness-related rulings and practices, probably discern a range of acceptable choices.69 My bottom-line suggestion is that, when such ranges materialize, backlogging judges ought to wonder whether their instincts are habitually landing them too far from the promptness pole.
* Administrative Magistrate, Massachusetts Division of Administrative Law Appeals. This essay reflects my personal thoughts in an unofficial capacity. My thanks to Eric Tennen for his helpful input.
1. See Exodus 18:22.
2. John Szmer et al., The Efficiency of Federal Appellate Decisions: An Examination of Published and Unpublished Opinions, 33 Just. Sys. J. 318, 336 (2013); Robert K. Christensen & John Szmer, Examining the Efficiency of the U.S. Courts of Appeals: Pathologies and Prescriptions, 32 Int’l Rev. L. & Econ. 30, 35–36 (2012); Christopher D. Bryan, The Role of Law Clerks in Reducing Judicial Backlog, Colo. Law., at 91 (May 2007); Tackling Court Backlogs in Lean Times: An HBJ Interview with Chief Justice Ronald T.Y. Moon, Haw. B.J., at 6, 10–13 (Sept. 1995); Victor Williams, Solutions to Federal Judicial Gridlock, 76 Judicature 185 (1993).
3. See Herbert D. Levitt, A Simple Solution to Judicial Gridlock, 27 Judges J. 32, 33 (1988); James N.G. Cauthen & Barry Latzer, Why So Long? Explaining Processing Time in Capital Appeals, 29 Just. Sys. J. 298, 310 (2008).
4. See generally Patrick A. Doody, How to Eliminate the Backlog at the Patent Office, 37 AIPLA Q.J. 395 (2009); Jason D. Grier, Chasing Its Own Tail? An Analysis of the USPTO’s Efforts to Reduce the Patent Backlog, 31 Hous. J. Int’l L. 617 (2009); Lyle Stohler & Shari Young, Strategies to Reduce a TPR Backlog: Chittenden Family Court Takes Action, 29 Vt. B.J. 45, 45 (2003).
5. Code of Conduct for United States Judges, canon 3(A)(5) (2019).
6. See Model Code of Judicial Conduct, rule 2.5 cmt. (Am. Bar Ass’n 2020); Model Code of Judicial Conduct for State Admin. L. Judges, rule 2.5 cmt. (Am. Bar Ass’n 2018); Can. Jud. Council, Ethical Principles for Judges 27-30 (2019); Cynthia Gray, Am. Jud. Soc’y, Ethical Standards for Judges 15-16 (2009).
7. Edward J. Schoenbaum, Managing Your Docket Effectively and Efficiently, 19 J. Nat’l Ass’n Admin. L. Judges 37, 38 (1999) (advising administrative law judges to “[a]nalyze everything [they] do in terms of effective and efficient hearings”).
8. See id. at 42–57; Gray, supra note 6, at 15.
9. Fed. R. App. Proc. 34(a)(2); Pettaway v. Barber, 645 F. Supp. 3d 1269, 1288 (M.D. Ala. 2022).
10. Gen. Signal Corp. v. MCI Telecomms. Corp., 66 F.3d 1500, 1508 (9th Cir. 1995); Babaletos v. Demoulas Super Markets, Inc., 225 N.E.3d 827 (Mass. 2024).
11. Fed. R. Civ. P. 16(b)(3)(A); Atl. Rsch. Corp., 217 Ct. Cl. 663, 664-65 (1978).
12. Fed. R. Civ. P. 15(a)(2); Reisner v. Gen. Motors Corp., 511 F. Supp. 1167, 1172-73 (S.D.N.Y. 1981), aff’d, 671 F.2d 91 (2d Cir. 1982).
13. Fed. R. Crim. P. 8, 14; Haggard v. United States, 369 F.2d 968, 973 (8th Cir. 1966).
14. Fed. R. Civ. P. 26(b)(2)(a).
15. Fed. R. Evid. 403.
16. Fed. R. Evid. 611(a); United States v. Honneus, 508 F.2d 566, 573 (1st Cir. 1974).
17. For the trade-off between speed and other values, including accuracy and fairness, see Emily Spottswood, The Perils of Productivity, 48 New Eng. L. Rev. 503 (2014); Patrick Johnston, Civil Justice Reform: Juggling Between Politics and Perfection, 62 Fordham L. Rev. 833, 876–80 (1994).
18. Model Code of Judicial Conduct, rule 2.5 cmt. (Am. Bar Ass’n 2020); Code of Conduct for United States Judges, canon 3(d)(5) (2019).
19. Schoenbaum, supra note 7, at 37 (observing that good judging “can’t be too slow, and it can’t be too fast”).
20. Fed. R. App. Proc. 34(a)(2)(C); Butterman v. Walston & Co., 50 F.R.D. 189, 190 (E.D. Wis. 1970); Jay Tidmarsh, The Future of Oral Argument, 48 Loy. U. Chi. L.J. 475, 479–83 (2016).
21. See supra text accompanying note 17.
22. See PeopleFlo Mfg., Inc. v. Sundyne, LLC, No. 20-cv-3642, 2022 WL 1062706, at *3 (N.D. Ill. Apr. 8, 2022).
23. Cf. Christopher P. Guzelian & Jeff Todd, The Legal Relevance of Economics, 93 Temp. L. Rev. 1, 28 (2020).
24. See Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 171–72 (1951) (Frankfurter, J., concurring); Lawrence B. Solum, Procedural Justice, 78 S. Cal. L. Rev. 181 (2004); Tom R. Tyler, What Is Procedural Justice? Criteria Used by Citizens to Assess the Fairness of Legal Procedures, 22 Law & Soc’y Rev. 103 (1988).
25. See William G. Young & Jordan M. Singer, Bench Presence: Toward A More Complete Model of Federal District Court Productivity, 118 Penn St. L. Rev. 55 (2013); Jordan M. Singer & William G. Young, Measuring Bench Presence: Federal District Judges in the Courtroom, 2008–2012, 118 Penn St. L. Rev. 243 (2013); Jordan M. Singer & William G. Young, Bench Presence 2014: An Updated Look at Federal District Court Productivity, 48 New Eng. L. Rev. 565 (2014).
26. See generally Guido Calabresi, The Costs of Accidents (1970).
27. See generally Jeffrey Evans Stake, Status and Incentive Aspects of Judicial Decisions, 79 Geo. L.J. 1447, 1473 (1991); George L. Priest, The Common Law Process and the Selection of Efficient Rules, 6 J. Legal Stud. 65 (1977).
28. Cf. David E. Van Zandt, An Alternative Theory of Practical Reason in Judicial Decisions, 65 Tul. L. Rev. 775, 781–88 (1991); Richard A. Posner, The Jurisprudence of Skepticism, 86 Mich. L. Rev. 827, 853–54 (1988).
29. A few examples include Merritt McAlister et al., What Can Be Done About Backlogs?, 107 Judicature 50, 54–55 (2023); Tony Wyatt, Criminal Courts: Tackling a Backlog Blaze, 164 Solic. J. 54 (2021); Tony Guise, Busting the Litigation Backlog, 163 Solic. J. 36 (2020); Michael Loney, The Battle Against the Backlog, 254 Managing Intell. Prop. 10 (2015).
30. See infra notes 31–32 and accompanying text.
31. U.S. Courts, Federal Court Management Statistics, September 2024: Federal Court Management Statistics—Comparison Within Circuit, https://www.uscourts.gov/sites/default/files/2024-12/fcms_na_distcomparison0930.2024.pdf (last visited Mar. 25, 2025) [https://perma.cc/4UZ6-WW6X].
32. See Guise, supra note 29.
33. See Cauthen & Latzer, supra note 3, at 308–10 (finding that processing times correlate with case complexity and related factors).
34. See supra Part I.
35. See, e.g., Can. Jud. Council, supra note 6, at 30.
36. Id.
37. 18 U.S.C. § 3161; Shon Hopwood, The Not So Speedy Trial Act, 89 Wash. L. Rev. 709, 710 (2014); Greg Ostfeld, Speedy Justice and Timeless Delays: The Validity of Open-Ended “Ends-of-Justice” Continuances Under the Speedy Trial Act, 64 U. Chi. L. Rev. 1037, 1038 (1997); J. Andrew Read, Open-Ended Continuances: An End Run Around the Speedy Trial Act, 5 Geo. Mason L. Rev. 733, 733 (1997).
38. 28 U.S.C. § 471 (2024).
39. 28 U.S.C. § 476 (2024).
40. See Charles Gardner Geyh, Adverse Publicity As A Means of Reducing Judicial Decision-Making Delay: Periodic Disclosure of Pending Motions, Bench Trials and Cases Under the Civil Justice Reform Act, 41 Clev. St. L. Rev. 511 (1993); R. Lawrence Dessem, Judicial Reporting Under the Civil Justice Reform Act: Look, Mom, No Cases!, 54 U. Pitt. L. Rev. 687 (1993).
41. See Guise, supra note 29.
42. Cf. John M. Greacen, Backlog Performance Measurement: A Success Story in New Jersey, 46 Judges J. 42, 45–46 (2007) (describing several sophisticated backlog-related statistics tracked by the New Jersey courts).
43. U.S. Courts, March 2024 Civil Justice Reform Act: Total Matters Pending, by Type of Matter and Circuit, https://www.uscourts.gov/sites/default/files/data_tables/cjra_3_0331.2024.pdf (last visited Mar. 25, 2025) [https://perma.cc/X37A-639D].
44. Id.
45. Id.
46. Id.
47. Cf. Cauthen & Latzer, supra note 3, at 310 (noting that courts cannot control case complexity).
48. See generally Tim A. Baker, Sizing Up Settlement: How Much Do the Merits of A Dispute Really Matter?, 24 Harv. Negot. L. Rev. 253 (2019); Russell Korobkin & Chris Guthrie, Psychology, Economics, and Settlement: A New Look at the Role of the Lawyer, 76 Tex. L. Rev. 77 (1997); George L. Priest & Benjamin Klein, The Selection of Disputes for Litigation, 13 J. Legal Stud. 1 (1984).
49. See Szmer, et al., supra note 2, at 329, 333.
50. Id.
51. See, e.g., Sup. Ct. E-Libr., Court and Case Management: Trial Court Performance Standards & Measurement, https://elibrary.judiciary.gov.ph/thebookshelf/showdocs/44/50132 (last visited Mar. 25, 2025) [https://perma.cc/HCJ5-AYPE].
52. Cf. Levitt, supra note 3, at 33 (quoting a chief judge as saying, “If we could just get rid of that [old] group of cases, our judges could keep new civil filings on a [prompt] track”).
53. Model Code of Judicial Conduct, rule 2.5 cmt. (Am. Bar Ass’n 2020); Code of Conduct for United States Judges, canon 3(d)(5) (2019).
54. Tackling Court Backlogs in Lean Times, supra note 2, at 6, 8.
55. Schoenbaum, supra note 7, at 43–46; Levitt, supra note 3, at 35; Fed. Jud. Ctr., Benchbook for U.S. District Court Judges 197 (6th ed. 2013).
56. Tackling Court Backlogs in Lean Times, supra note 2, at 6, 8–9; Guise, supra note 28.
57. Schoenbaum, supra note 7, at 47–48.
58. Id. at 52–53.
59. Christensen & Szmer, supra note 2, at 35–36; Szmer et al., supra note 2, at 336.
60. Steven S. Gensler & Lee H. Rosenthal, Measuring the Quality of Judging: It All Adds up to One, 48 New Eng. L. Rev. 475, 484 (2014).
61. Szmer et al., supra note 2, at 333–35; Charles Wood, Justices Winning Battle with Their Backlog, Mont. Law., Apr. 2010, at 5, 5.
62. Gensler & Rosenthal, supra note 60, at 486; McAlister et. al., supra note 29, at 54–55.
63. See sources cited supra note 2.
64. Cf. Valentina Dimitrova-Grajzl et al., Court Output, Judicial Staffing, and the Demand for Court Services: Evidence from Slovenian Courts of First Instance, 32 Int’l Rev. L. & Econ. 19, 28 (2012) (analyzing findings that “an increase in . . . caseload[] incentivizes judges to substantially increase their productivity”); William G. Young, Keynote: Mustering Holmes’ Regiments, 48 New Eng. L. Rev. 451, 458 (2014) (“Courts with the highest per active judge case filings also have the highest per active judge terminations, and the courts with the lowest caseloads seem satisfied to dispose of their business without ever getting ahead.”).
65. Cf. Peter S. Menell & Ryan Vacca, Revisiting and Confronting the Federal Judiciary Capacity “Crisis”: Charting a Path for Federal Judiciary Reform, 108 Calif. L. Rev. 798, 886 (2020).
66. Cf. McAlister et al., supra note 29, at 58–59.
67. See George L. Priest, Private Litigants and the Court Congestion Problem, 69 B.U. L. Rev. 527 (1989); Samantha Bielen et al., Backlogs and Litigation Rates: Testing Congestion Equilibrium Across European Judiciaries, 53 Int’l Rev. L. & Econ. 9 (2018).
68. Cf. Carolyn A. Dubay, A Country Without Courts: Doing More with Less in Twenty-First Century Federal Courts, 48 New Eng. L. Rev. 531 (2014) (discussing the political branches’ unrealistic expectations of judicial productivity).
69. See generally Zervos v. Verizon New York, Inc., 252 F.3d 163, 168-69 (2d Cir. 2001) (defining abuse-of-discretion review); United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004) (same); L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (same).
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