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Precluding Appeals, 70 Cornell Law Review 603 (1985)


Over the past forty years, we have vastly increased our information about courts. New methods of recordkeeping have led to a wealth of statistics about court processes. This new information has, in turn, increased concern about burgeoning litigation rates and the limits of judicial and litigants' resources. The resulting perceptions of congestion and of systemic malfunctioning have led, in general, to two related developments, each pointing in a different direction. The first is a cutback—limiting access to adjudication by developing expansive preclusion doctrines. The second development is an increase in adjudicative tribunals and thus in the opportunities to have many issues decided by more than one set of decisionmakers.

As to the first development, the cutback, the Supreme Court has led the way. During the past several years, in diverse fields of law, the Court has narrowed litigation opportunities. A series of examples are cases involving the relationship between state and federal litigation. Opinions such as Stone v. Powell, Wainwright v. Sykes, and Engle v. Issac all involve interpretations of the habeas corpus act for state prisoners; in all, the Court precluded habeas review. A second line of cases includes Allen v. McCurry and Migra v. Warren City School District Board of Education, both of which held that state criminal or civil litigation precluded federal civil rights litigation. Another exemplary opinion is Kremer v. Chemical Construction Corp., which limited the number of occasions for factfinding in title VII cases. Within a unitary framework, the federal system, this theme has been repeated. In United States v. Frady, the Court narrowed decisionmaking opportunities for federal prisoners seeking habeas relief. In United States v. Raddatz, the Court permitted a limited role for federal judges who adopt magistrates' recommended opinions. Finally, the Pullman-Standard v. Swint opinion set forth a minimal scope of appellate review of federal trial judges' factfinding. All of these cases involved multiple opportunities for litigation in federal courts, federal and state courts, or courts and agencies. In every case, the Court chose less decisionmaking and fewer, rather than more, procedural opportunities.

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