The founding principles of Western civilization rest on the premise that governments are created and financed collectively in order to provide services to society that cannot be easily obtained in the private sector.
In any modern economy, these “public goods” span a diverse spectrum, including public health and safety, national defense, infrastructure, environmental protection, public education, and safety-net programs. In capitalist nations, the ability to protect property rights and enforce contracts is also an essential element of effective and sustainable governance.
Obviously, one of the most critical institutions required to secure this time-honored and proven framework for prosperity is an independent system of adequately staffed and funded courts. Public safety can only be sustained through a robust criminal justice system in which laws are properly enforced.
Similarly, individuals and businesses cannot effectively make investments and transact commerce without a viable mechanism to provide confidence that assets and agreements will be properly recognized and preserved in a predictable and timely manner. This phenomenon dates at least to the Middle Ages, when the merchants of Florence developed a crude system of courts to facilitate the purchase and transport of wares from Nice. Then and now, contracts must be protected for commerce to flourish. During that same era, St. Thomas Aquinas wrote extensively about the proper way to determine a “just price” for goods and services, a concept that bears a remarkable similarity to the issues that the judiciary must now grapple with in many contexts.
By the time of the American Revolution, the fact that the king’s patronage controlled judgeships and affected court rulings was a primary grievance leading the colonies to seek independence. It is little wonder that the Declaration of Independence, the Constitution, and the Bill of Rights all focus extensive attention on the courts and the rule of law, and that the US Pledge of Allegiance concludes with “…and Justice for All.”
Every court system must evolve and expand to accommodate economic and demographic growth, as well as the changing nature and character of business activity. The sheer increase in people and production will in and of itself place more demands on the judiciary. This pattern is repeated and magnified as society grows more complex. For example, an economy driven by technology and intellectual property requires exponentially more judicial infrastructure resources than one based on agrarian production. Property rights, ownership, and contractual obligations are much simpler to define, interpret, and enforce for crops and livestock than for modern products embodying thousands of patents and trade secrets and which are subject to attack by electronic means. Illegal activity now encompasses cybercrime, multinational drug cartels, identity theft, and many other sophisticated elements of society that were unknown in the past.
Similarly, urbanization, the globalization of commerce, and greater concentration of business activity demand a more expansive and responsive system of courts. More people create the need for additional transportation and education infrastructure. Greater productivity requires enhanced utilities and communication capabilities. Correspondingly, a larger, more urbanized, and increasingly sophisticated global economy generates notable challenges in law enforcement and the protection of rights, thus compelling more robust judicial infrastructure. In short, economies can only prosper by (1) increasing the quantity and quality of productive resources or (2) using existing resources more efficiently. The court system is essential to both mechanisms.
Despite this undeniable reality, the infrastructure of justice has not automatically been well maintained. Many state and municipal courts throughout the country are woefully underfunded, a trend that appears to be intensifying.
Simultaneously, delays in filling vacancies in the Federal courts and the failure to expand the number of judgeships to keep pace with increases in the population and the level and sophistication of production processes are compromising the essential framework for social progress and prosperity. Just as a failure to maintain an adequate network of roads, bridges, rails, utilities, and communication to accommodate growing needs will limit prosperity, a lack of sufficient judicial infrastructure retards economic and individual potential and frustrates societal advancement.
One of the most significant representations of this phenomenon is reflected in the Federal courts presently serving the US District Court for the Eastern District of Texas (Eastern District), a region which stretches from refining and petrochemical complexes on the Gulf Coast to the technology corridor in the northern Metroplex. Caseloads have more than doubled since 2009, thanks in part to rapid population and economic growth in Collin and Denton counties. The inadequacy of judicial infrastructure in the Eastern District, which is among the most strained in the entire US, will predictably constrain economic growth over time. This outcome is unavoidable in the absence of corrective action.
On the other hand, investing in the judicial infrastructure can not only improve quality of life, but also enhance future prosperity by reducing uncertainties and time required to resolve business disputes. We recently studied the issue and found that filling the two positions now vacant in the Eastern District would add almost 78,200 jobs as of 2030 compared to a baseline situation reflecting current infrastructure. If the vacant positions are filled and two additional judges are added as recommended by the Court Administrator, the benefits would increase to approximately 148,400 net incremental jobs as of 2030. (The study is available for complimentary download on our website at www.perrymangroup.com.)
Without additional judges, the current difficulties in the Eastern District and a number of other districts around the country will only become worse in the future, with caseloads rising, judges increasingly overworked, criminal and civil cases delayed, and people and businesses unable to resolve disputes in a predictable and efficient manner.
If a critically strained judicial infrastructure is not addressed, “…and Justice for All” — citizens, businesses, and those who protect them — will, over time, become less and less attainable. If this stressed infrastructure were to crack or collapse, the economic disruptions could be calamitous until a functioning and predictable system could be restored.