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Private Litigants and the Court Congestion Problem, 69 Boston U. L. Rev. 527 (1989)


Litigation delay has proven a ceaseless and unremitting problem of modem civil justice. Civil court delay has been the central focus of serious and concentrated reform in the United States since the late-1950s. The congestion problem has been examined in a series of detailed empirical studies, and legislators and court administrators have introduced reform after reform to try to cure it.

Three decades later, it is apparent that little, if any, progress has been made. Most of our country's major urban courts remain plagued by congestion. Despite the extraordinary legislative and administrative consensus for reform, no single measure has been shown consistently to reduce delay. Moreover, though many jurisdictions have escaped congestion problems, there is little understanding of what structural or procedural characteristics of their civil justice systems allow them to promptly clear their judicial calendars.

Much of our understanding of litigation delay has been influenced by the early important work of Zeisel, Kalven, and Buchholz. The Zeisel team approach derives from their view of the litigation delay problem in terms of the metaphor, drawn from the lumber industry, of a logjam. As Zeisel, Kalven, and Buchholz saw the problem, cases flow into a court calendar in the way logs float into a lake. The determinants of the size of the logjam at any point are the rate that logs flow into the lake, the rate that logs flow out of the lake, and the number of logs stuck in the lake from earlier imbalances in the flow.

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