Article III courts are white-collar courts. They are, scholars have said, “special.” They sit atop the judicial hierarchy, and they are the courts of the one percent. We inculcate that sense of specialness in a variety of ways: federal courts are courts of limited jurisdiction; they are the subject of a (perhaps overrated) class in law school; we privilege clerkships with federal judges more than with state-court judges; and we focus more scholarly attention on federal courts than state courts. They are, in short, the courts of the elite— jurisdictionally, doctrinally, and socially. Perhaps the singular importance of federal courts was inevitable, but this Article explores that attitude’s darker side. White-collar courts privilege certain kinds of disputes and certain classes of litigants; federal courts prefer white-collar work to blue-collar work. Such privilege, this Article argues, creates expressive and attitudinal harms: it imposes a value judgment about the work of federal courts that denigrates some, while exalting others.
Over the last century, what this Article calls “macro-judging”—a term that, consistent with macroeconomics, describes institution-level judicial decisionmaking—has created opportunities for federal courts to express their preference for white-collar work in a variety of ways. Ostensibly to tackle two competing caseload crises—an increase in small, low-value litigation and an increase in the numbers and complexity of “big” cases—Article III judges have lobbied for, and created, procedural systems that have shifted work to other decisionmakers, increased their agenda-setting power, and entrenched their autonomy. Macro-judging has resulted in necessary and even benign or beneficial judicial programs, policies, and procedures. But these procedural and administrative shifts have also created pathways for preferential treatment of certain classes of cases and litigants, have endangered access to justice in federal courts, and may have created an attitudinal foundation for maximalist judicial rulings.
Merritt E. McAlister