Supreme Courts Under Pressure: Controlling Caseload in the Administration of Civil Justice (Ius Gentium: Comparative Perspectives on Law and Justice, 83)

"This book discusses civil litigation at the supreme courts of nine jurisdictions - Argentina, Austria, Croatia, England and Wales, France, Germany, Italy, Spain and the United States - and focuses on the available instruments used to keep the caseload of these courts within acceptable limits. Such instruments are necessary in order to allow supreme courts to fulfil their main duties, that is, the administration of justice in individual cases (private function) and providing for the uniformity and development of the law within their respective jurisdictions (public function). If the number of cases at the supreme court level is too high, the result is undue delays, which are mainly problematic with regard to the private function. It may also put the quality of the court's judgments under pressure, which can affect its public and private function alike. Thus, measures aimed at avoiding excessive caseloads need to take both functions into account. Increasing the capacity of the court to handle larger numbers of cases may result in the court being unable to adequately fulfil its public function, since large numbers of court decisions make it difficult to guarantee the uniformity of the law and its development. Therefore, a balanced approach is needed to safeguard capacity and quality. As shown by the contributions gathered here, the nature of reform in this area is not the same everywhere. There are a variety of reasons for this heterogeneity, ranging from different understandings of the caseload problem itself, local conceptions regarding the purpose of the Supreme Court, and strong entitlements concerning the right to appeal to budgetary restrictions and extremely rigid legislation. The book also shows that the implementation of similar solutions to case overload, such as access filters, may have different effects in different jurisdictions. The conclusion might well be that the problem of overburdened courts is multifactorial and context-dependent, and that easy, one-size-fits-all solutions are hard to find and perhaps even harder to implement.​" Contents Abbreviations Part I: Introduction Introduction 1 `Under Pressure ́ 1.1 Two Dimensions of Case Overload 1.2 Various Solutions 1.3 Content 2 Romanic Legal Tradition 2.1 France 2.2 Italy 2.3 Spain 3 Germanic Legal Tradition 3.1 Germany 3.2 Austria 3.3 Croatia 4 Anglo-American Legal Tradition 4.1 England and Wales 4.2 United States of America 4.3 Argentina References Part II: Romanic Legal Tradition Towards a Reform of the French Court of Cassation? 1 The French Court of Cassation in Its Context 2 On-Going Reform 3 Conclusion References Finding a Cure or Simply Relieving Symptoms? The Case of the Italian Supreme Court 1 The Italian Supreme Court and Its Performance 2 One Court and Two Different Functions 3 Overburdened Docket: Consequences, Internal Solutions ... 4 and External Interventions: The 2009 and 2016 Legislative Reforms 5 Effectiveness of the Solution 6 `Tips ́ from the Outside 7 Conclusion References Back in Focus: Case Overload and Case Selection Standards in the Spanish Supreme Court 1 Overview of the History of the Supreme Court 1.1 The Constitution of Cdiz (1812) 1.2 The Establishment of Cassation Appeal (1838) 1.3 The Definitive Shape of Spanish Cassation (1855-1881) 1.4 The Passing of the Crown (1978) 1.5 A Monetary Threshold (1984-1992) 1.6 `Cassational Interest ́ As the Central Standard (2000) 1.7 A Constitutional Certiorari (2007) 1.8 Legal and Statistical Overview 1.9 Almost a Revolution (2014) 1.10 Towards a New Stability? 2 Particular Aspects 2.1 Composition of the Supreme Court and the Cassation Procedure 2.2 Case Overload Problems 2.3 Case Overload Solutions 2.3.1 Increasing Capacity 2.3.2 Procedural Measures 2.3.3 Reducing Quantity 3 Conclusion References Part III: Germanic Legal Tradition Sharing Responsibility: The German Federal Court of Justice and the Civil Appellate System 1 Overview of the Supreme Court 1.1 The Historical Setting 1.2 The Structure of the Federal Supreme Court 1.2.1 Internal Organisation 1.2.2 Special Bar of Lawyers 1.2.3 Other Federal Supreme Courts 1.2.4 The Federal Constitutional Court 1.3 The Procedural Setting 1.3.1 The Court System in Civil Matters 1.3.2 The Types of Appeal Appeal (Berufung) Appeal on Points of Law (Revision) Complaint (Beschwerde) and Complaint on Points of Law (Rechtsbeschwerde) 1.3.3 Restricting Access to the Bundesgerichtshof The System as It Was Before 2002 Leave to Appeal Striking Out Revisions 1.3.4 Grounds for Appeal (Revisionsgründe) Violation of the Law Factual Basis 1.3.5 A Successful Appeal on Points of Law 1.4 Workflow: Case Management 1.4.1 Preliminary Selection of Cases 1.4.2 Inferior Judges/Law Clerks 1.4.3 Writing the Judgment 1.5 Caseload 1.5.1 Intake 1.5.2 Judgment on the Merits 1.5.3 Evolution of Caseload Over the Years 2 Overload Problem 2.1 Symptoms of Overload 2.2 Crisis and Reform Movement 2.3 Caseload and Functions 3 Overload Solutions 3.1 Increasing Capacity 3.2 Reducing Quantity 3.2.1 Court Fees 3.2.2 Restrictions on Access and Other Filters 4 Effectiveness of the Solutions 5 Openness to Transplants 6 Conclusion References Access to the Austrian Oberster Gerichtshof: Attempts to Strike a Balance Between Adequate Workload and Adequate Review 1 The Oberster Gerichtshof 1.1 Introduction 1.2 A Brief History of the OGH 1.3 Organisation of the OGH 1.4 Access to the OGH 1.4.1 Short Introduction to the Austrian Court System and Appeal Procedure 1.4.2 Remedies Against Appeal Decisions 2 The High Caseload of the OGH and Attempts to Reduce It 2.1 Symptoms of Overload and Historical Reasons for It 2.2 Important Question of Law Instead of Value Limits? 2.3 Combination of Access Filters 2.4 Other Measures Against Overload 2.5 Other Mechanisms 3 Effectiveness of Current Measures 3.1 Development of Workload and Duration of Proceedings 3.2 `Usability ́ of the System 3.3 Effectiveness in Relation to the OGH ́s Function 3.3.1 Transformation of the Court ́s Function 3.3.2 Fulfilment of the Respective Functions 3.3.3 Guiding Function 3.3.4 Safeguarding Individual Interests 4 Openness to Transplants 5 Conclusion 5.1 Absence of Real Crisis and Extent of Reforms 5.2 Complexity, Definition of Role and Efficiency of Reforms 5.3 Size of the Supreme Court and Internal Organisation 5.4 Overall Conclusion/Summary References Croatia: Supreme Court Between Individual Justice and System Management 1 Introduction 2 The Supreme Court of Croatia 3 Revizija as a Second Appeal on Points of Law 4 Symptoms of Case Overload 5 Case Overload Solutions and Their Effectiveness 6 An Embrace of the Public Function of the Supreme Court? 7 Conclusion References Part IV: Anglo-American Legal Tradition The Supreme Court of the United Kingdom and the Court of Appeal in England and Wales: Sharing the Appellate Load 1 Introduction 2 Structure and Practice of the Appellate Courts 2.1 The United Kingdom Supreme Court 2.1.1 The Court and Its Personnel 2.1.2 Appellate Jurisdiction 2.1.3 Permission to Appeal Requirements 2.1.4 Permission to Appeal and Appeal Statistics 2.2 The Court of Appeal 2.2.1 The Court and Its Personnel 2.2.2 Appellate Jurisdiction 2.2.3 Permission to Appeal Requirements 2.2.4 Permission to Appeal and Appeal Statistics 3 Caseload Problems and Reform Attempts 3.1 No Overload in the UKSC 3.2 Case Overload in the Court of Appeal and Procedural Reform 4 Conclusion References A Happy-Go-Lucky Story: The American Supreme Court and Overload Problems 1 Introduction 2 The Purpose Served by the U.S. Supreme Court 3 The Long Path to the Current U.S. Supreme Court Apparatus 4 Caseload Pressure and Institutional Evolution in the U.S. Supreme Court 5 Caseload Cures and Consequences in the U.S. Supreme Court 5.1 Expanding the Court 5.2 Adding Staff 5.3 Choosing the Cases: Limiting the Caseload via the Certiorari Decision 5.4 Limiting the Court ́s Jurisdiction 5.5 The Burden of the Plenary Docket 5.6 A Real Caseload Crisis in the U.S. Courts of Appeals? 6 The Role of National Legal Culture 6.1 Narrowing Judicial Functions: Advisory Opinions and Political Questions 6.2 A Broadened View of Finality 6.3 Ancillary Responsibilities 6.4 Receptiveness to Transplants 7 Conclusion References Case Selection and Writ of Certiorari in Argentina: `Transcendence ́ as a Case-Selection Parameter at the Federal Supreme Court 1 Introduction 2 Filters and the Crisis of the Supreme Courts 2.1 `Quantitative ́ Crisis 2.2 `Qualitative ́ Crisis 2.3 Mechanisms to Address the Crisis 3 The Requirement of `Transcendence ́ in the Extraordinary Appeal at the Federal Supreme Court 3.1 Introduction 3.2 The Partial Discretion of Article 280 of the Code of Civil Procedure 3.3 The Requirement of `Transcendence ́ and the Definition of Irrelevant Issues 3.3.1 Introduction: `Transcendence ́ and the Institutional Role of the Supreme Court 3.3.2 Heterogeneity of the Supreme Court ́s Roles. Variability of Parameters. Importance 3.3.3 First Requirement to Define `Transcendence ́ or `Significance ́: Suitability of the Case to Allow the Supreme Court to Acc... 3.3.4 Second Requirement to Define `Transcendence ́ or `Significance ́: General Impact of Discussed Issues. Distinction Between ... The Direct or Indirect Scope of the Precedent The Size of the Group of Person Affected 3.3.5 Irrelevant Issues, Discretion and Verisimilitude. `Argentine Certiorari ́ and the Doctrine of `Arbitrariness ́ 4 Conclusion References