do less work or to deny access to worthy suitors. The last thing that Federal judges want to do is to deny access to the Federal courts to people who need it. The desire rather is to be able to do a better job for the suitors who most need that access, people making claims of constitutional rights or asserting rights under statutes which have been passed by Congress. I think diversity jurisdiction is going to have to be abolished some time and I ask the question, why not now? I am very grateful to the subcommittee for having been willing to hear me on this subject which, as the chairman noted, has been close to my heart for 50 years.

Mr. KASTENMEIER. Thank you, Judge Friendly, for your important contribution to this subcommittee.

[The prepared statement of Hon. Henry J. Friendly follows:]

STATEMENT OF JUDGE HENRY J. FRIENDLY

My name is Henry J. Friendly. I was appointed to the United States Court of Appeals for the Second Circuit in 1959 and served as Chief Judge from 1971 to 1973. In 1974 I took senior status when I was appointed as Presiding Judge of the Special Court under the Regional Rail Reorganization Act, to which I now devote part of my time.

I am truly pleased at the opportunity to appear before this subcommittee. A year ago, in a talk at the bicentennial program of the New York University Law School, I predicted "that before the year 2000 the Federal courts will be rid of the incubus of diversity jurisdiction and thus be able to concentrate on their proper tasks." It is heartening to be able to hope, as a result of this subcommittee's concern, that we may attain this goal twenty years sooner.

My interest in diversity jurisdiction dates back to 1927, when Prof. Felix Frankfurter, as he then was, asked me to assist in preparing a history of the diversity of citizenship jurisdiction of the federal courts. Unhappily his many other interests forced him to abandon the project; what would have been the substance of the first chapter appeared over my name in 1928, entitled "The Historic Basis of Diversity Jurisdiction," 41 Harv. L. Rev. 483. My main interest was in endeavoring to ascertain, from the debates in the Constitutional Convention, the state ratifying conventions, and the first Congress, and from the Federalist papers and other contemporary writings, just why the founders authorized and the first Congress so broadly implemented a jurisdiction that had been hotly contested and was not very strongly supported-especially the puzzling authorization, in the first Judiciary Act, for the in-State plaintiff to sue the out-State defendant.

I concluded that, in addition to the traditional justification of prejudice against outstaters, there was a pervasive distrust whether at least some State courts would be fair to the interests of creditors, out-staters or in-staters; this would account both for the breadth of the grant and for at least some of the opposition to it. Looking to more recent times, I noted that the growth in the work of the Federal courts in administering Federal law would "not abate, since it is responsive to deep social and economic causes," that only diversity jurisdiction was "out of the current of these nationalizing forces;" and that "the unifying tendencies of America here make for a recession of jurisdiction to the States. . . ." The last proposal, if it can be called one, was doubtless premature in 1928; in 1977 it is overdue. Quite simply, diversity of citizenship jurisdiction is an idea whose time has gone.

My main thesis is that we must abolish diversity jurdisdiction because it is a luxury we can no longer afford. Later I will present statistics on the workload of the Federal courts that will prove this. Bare statistics, however, tell only part of the story. Before approaching them, it is necessary to understand how drastically the essential tasks of the Federal courts have changed from as recently as 1960, let alone 1928.

In 1928 we were only a half century away from the grant of general Federal question jurisdiction to the Federal courts in 1875. More important, we had not even begun to appreciate what their role would become in the enforcement of civil rights. The civil rights laws of the Reconstruction Congresses had largely

remained dead letters; their resuscitation as a means of vindicating the rights of citizens against State officers dates only from the 1961 decision in Monroe v. Pape, 365 U.S. 167.

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The impact of the Monroe decision was accentuated by its coincidence with the extension of most of the provisions of the Bill of Rights to the states and a broadened interpretation of these provisions; while the chief Federal court impact of this extension was on habeas corpus for State prisoners, it had an effect on civil rights actions as well. Along with this have come new and more expansive readings of the equal protection and due process clauses of the Fourteenth Amendment. The equal protection clause, characterized by Mr. Justice Holmes in 1927 as "the last resort of constitutional arguments," Buck v. Bell, 274 U.S. 200, 208, has often become the first. Since the epoch-making 1954 decision in Brown v. Board of Education, 347 U.S. 483, the Federal courts have endeavored to root out racial discrimination in every phase of life. The equal protection clause has also been invoked, with varying degrees of success, against discrimination based on other factors-sex, age, residence, legitimacy, religion and wealth. A reading of the due process clause to require hearings with respect to all sorts of official action, even discipline in public schools, has led, as I said in 1975, to "a greater expansion of procedural due process in the last five years than in the entire period since ratification of the Constitution." The task of giving reality to these new doctrinal developments falls primarily on the lower federal courts.

There has been an equal if not greater expansion of federal civil rights by legislation. Here the landmarks are the Voting Rights Acts of 1957 and 1965, the more comprehensive Civil Rights Acts of 1964 and 1968, and the Age Discrimination in Employment Act of 1968.

These developments have had an enormous impact on the business of the Federal courts. In the fiscal year 1960 only 280 suits were filed under Federal civil rights statutes. By 1970 the figure had risen to 3,586, an increase of over 1,100 percent as compared with one of 45 percent in civil cases generally. See Hart & Wechsler, "The Federal Courts and the Federal System," p. 950 n.3. By 1976 the 1970 figure had trebled to 10,585, "Report of the Director of the Administrative Office," Table c.2. These figures are exclusive of civil rights suits by or against the United States or Federal officials, of which there were 1,744 in 1976. They are also exclusive of the 7,460 suits by prisoners alleging deprivation of their civil rights.

In addition to civil rights litigation, the years since 1960 have also witnessed a tremendous expansion of federal court litigation under statutes passed many years before. The 1935 Congress would hardly have expected the Social Security Act to be a great breeder of Federal litigation. Yet actions under that statute have risen from 537 in 1961 to 10,355 in 1976. The bulk of these in terms of numbers consists of actions to review the denial of disability pensions, including the special "black lung” disability benefits afforded coal miners and their dependents. A group much smaller in numbers but vastly greater in difficulty consists of cases involving the conformance of State welfare programs to Federal standards; their difficulty is enhanced by the incredible complexity and obscurity of the HEW regulations which by comparison make the Internal Revenue Code seem suitable reading for teenagers. Another New Deal statute which had a delayed blooming in the courts was the Securities Exchange Act of 1934. Securities and commodities cases, primarily actions under the SEC's Rule 10b-5, grew from 267 in 1967 to 2,230 in 1976; many of these are class actions.

We must add three fields in which Congresses over the past decade have invoked the commerce power to create an enormously more important role for the Federal Government and correspondingly for the Federal courts. The first is safety. The most important single statute is the Occupational Safety and Health Act of 1970, but there are special acts dealing with motor vehicles, pipelines, coal mines, ports and waterways, and consumer products. A second is transactions between sellers and buyers and between lenders and borrowers; I could list the statutes but this committee hardly needs citations. The third is the environment. The basic statute, the National Environmental Policy Act of 1969, has been supplemented by others dealing more specifically with such subjects as water quality, clean air and noise control. For further details I refer you to the illuminating Impact Study on pp. 119-148 of the "Report of the Director of the Administrative Office of the Courts for 1976."

The new business of the Federal courts is much more taxing than the old businesses. A single school desegregation case can occupy a district judge for years. First he must determine whether the plaintiffs have made out a case for relief. If they have, he must devise a suitable plan after hearing from all interested groups. Then will come the problems of enforcement. Finally, modifications of the plan may become necessary in the light of experience. While the much publicized Boston desegregation action ranks statistically as one case, I am sure that the demands on the time of Judge Garrity, let alone the emotional stress, were more than he would encounter in a hundred ordinary actions. Similar remarks could be made in regard to suits concerning the conditions of prisons and mental hospitals, where Federal courts have felt obliged to work out detailed codes affecting nearly every aspect of operation.

If you want some notion what an environmental action can mean as a drain on the time of a Federal court, in this instance a court of appeals, I invite your attention to the 33-page opinion of Judge Griffin Bell (as he then was) in State of Texas v. EPA, 499 F.2d 289 (5 Cir. 1974), in which the court was obliged to delve deeply into abstruse issues of technology and statistical theory, without benefit of prior agency review. Much of the new business consists of class actions; nearly 9,000 of these were pending in the district courts at the end of 1976. The handling of actions such as I have been describing is no more like that of the ordinary law suit than the operation of the Queen Elizabeth II is like paddling a canoe.

Being a Federal judge today thus is an altogether different and infinitely more demanding business than when I went on the bench eighteen years ago. The Federal courts have become, as they should be, the primary protectors of the basic civil rights of all citizens; they also have been assigned vital tasks relating to welfare programs, protection against various sorts of fraud and overreaching, the promotion of safety, and the protection of the environment. Proper performance of these tasks, as well as such traditional Federal business as admiralty, antitrust, bankruptcy, copyright, patents and trademarks, and the enforcement of the expanding Federal criminal law, demands all that a federal judge can give. He should not be distracted by cases, all turning on State law, which a State judge can generally handle as well and in many instances can handle better.

It is with this background that I turn to the overall statistics. In the year ended June 30, 1976, there were 130,597 civil filings in the district courts, an increase of 11.3 percent over 1975 and of 49.4 percent over 1970 when the last increase in district judgeships occurred. This was no isolated phenomenon. Nineteen seventy-six was the fifteenth consecutive year in which civil filings in the district courts have increased. In the absence of legislation curtailing some heads of Federal jurisdiction, this increase is bound to continue. The members of this committee know better than I that the increased legislative activity of the past decade has not come to a stop, or even to a pause. If Congress is convinced that there is a serious problem and that it has devised a sound solution, it will not and generally should not be deterred from enacting legislation because of the new burdens this will impose on the Federal courts, although, as the Chief Justice has been urging for some years, it should clearly recognize them. For an example, one need only refer to the current discussons about illegal aliens; whatever Congress decides the solution of this problem to be, or even if it should decide there is no solution except drastic enforcement of existing law, the Federal courts will find their dockets substantially swollen.

This predictable heavy increase in Federal question litigation cannot be handled by a corresponding increase in the number of Federal district judges.

First, that is a solution which almost nobody wants. The strength of the Federal judiciary has come in no small part from its relatively modest size. It would, of course, be hard to argue that the present 400 district judges or even the 113 additional district judgeships voted last year by the Senate are the maximum or say exactly how many are too many. But certainly a point does come when further increases in the number of district judges would destroy the very values we wish to preserve. Second, an increase in judges paralleling the increase in workload is a solution we do not get. As indicated, the number of civil filings has increased by nearly 50 percent since 1970 but we are still awaiting the authorization of additional district judgeships recommended by the Judicial Conference in 1972. Third, whatever the merits or demerits of appointing additional district judges to cope with ever increasing dockets in those courts,

this remedy is unavailing in the courts of appeals, since an increase means either too many judges in existing circuits or an increase in the number of circuits beyond the two additional ones recommended by the Hruska Commission, on which Representatives Brooks and Wiggins of this Committee sat. Both solutions are highly undesirable, for reasons developed in the Commission's report. See pp. 126-31. In 1972 I reported that "The Courts of Appeals are already in a state of crisis" with filings of 14,535 appeals-a 273 percent increase over 1960 as compared with an increase of only 64 percent in district court filings. In 1976 filings in the courts of appeals had grown by another third to 18,408 twice that of 1968 when the number of court of appeals judges was last increased. Moreover, the avalanche of filings has had a predictable result: The backlog of pending appeals climbed to 14,110 appeals in 1976, 16.3 percent more than at the beginning of that year. And this is despite the fact that these courts have adopted almost all conceivable devices-some think too many-to increase their productivity.

I refer to such practices as the radical restriction on oral argument in many circuits; the drastic reduction in time allotments when oral argument is allowed; the practice of deciding many cases from the bench with (or perhaps without) an oral statement of reasons and of disposing of them by order or memorandum, all supposedly without precedential force; and the general trend toward assembly line methods which the volume of business compels. We cannot realistically hope or even want much greater increase in output since it would mean a decline in the quality of these decisions, only 6 percent of which are even sought to be and only 1 percent of which are reviewed by the Supreme Court. The only effective way to avert a flood in the courts of appeals is to decrease the flow.

This is the background against which the committee must consider the abolition of diversity jurisdiction. Diversity cases stand apart from all others in the Federal courts. They involve no claim of Federal right; rather they are based solely on State law. Their subject matter is exactly like that of cases which, in much larger numbers, are being tried daily in the courts of the States by judges who are thoroughly experienced in handling them.

The number of these cases is sizable. In 1976, 31,675 diversity cases were filed in the district courts; these comprised almost a quarter of the civil filings. Despite the growth of no fault insurance, the number of such cases has increased year after year; and, except in the last fiscal year, their proportion of the total business of the district courts has increased as well. Appeals in 1714 diversity cases were filed in the courts of appeals in 1976; these were 11.3 percent of the total cases arising from the district courts. This is more than the total business of any circuit except the Fifth, the Ninth and, by a small margin, the Second. The number of filings in diversity cases represents a general increase in both absolute numbers and percentage of total district court appeals over the past four years, although in both cases fiscal 1976 was a minor exception.

Apart from the time which these cases take from more important tasks, Federal judges no longer are particularly well equipped to handle them. The days when the typical Federal district judge had just graduated from a career in which he had been trying personal injury and contract actions have long since passed, at least in the larger cities, and by that term I include Newark and Milwaukee as well as New York and Chicago. The new judge's trial experience will more likely have been in Federal fields-as a prosecutor or defense lawyer, in antitrust, labor or securities law litigation. Even the rate lawyer who is well versed in many branches of State law when he goes on the Federal bench cannot keep up with it; he has enough trouble maintaining pace with the manifold judicial and legislative developments in the Federal field. Save in the simplest cases he thus must learn, or relearn, the State law applicable in each diversity action, and these may be of any sort save matrimonial and probate. If the State law is not clear, he must make the best guess he can; he may make the wrong guess and there can be no appeal to any State tribunal. The problem in the court of appeals is even worse since one or more or even all of the judges hearing a diversity appeal may not come from the State whose law is in question. Moreover, the very availability of litigation of a State claim in a Federal court postpones the authoritative State decision that would otherwise be inevitable. In contrast State judges live with cases involving State law, and if the law is not clear, the highest court of the State will make it so.

There is no need for concern that eliminating diversity cases from the Federal courts would place too serious a burden on the State courts. The volume of litigation in those courts is so great that the increase would hardly be noticed.

This conclusion is thoroughly documented in a 1971 article by Senator Quentin Burdick in 48 North Dakota Law Review 1. Analyzing figures for 30 States, Senator Burdick concluded that the shift that would have been effected by the ALI proposal then under study by his committee would have varied from a low of 0.27 percent in Maryland to a high of 1.5 percent in New York. For Wisconsin the figure would have been 0.5 percent. Since the ALI proposal would have shifted only some two-thirds of all diversity cases, these figures should be increased by a half if diversity were to be eliminated altogether. Figures for 16 States showed that the shift in New York would have been only 19 percent of the increase in civil filings over the previous year; for the other States the percentage of the annual increase was less than 14 percent. The shift in New York would have added 5 cases to the docket of each State trial judge; in Wisconsin the addition would have been only 0.8 percent. Indeed, this objection is really not worth the discussion I have given it, since the Conference of State Chief Justices, at its last summer meeting, expressed willingness to assume all or part of the diversity jurisdiction of the Federal courts. (See "The Third Branch," Vol. 9, No. 8, p. 6.)

It is unnecessary to spend much time on some of the hackneyed arguments for retaining diversity jurisdiction-that it is needed to prevent Federal judges from becoming narrow technicians and thus to add to the joys of the Federal bench; that it is needed to give lawyers an exposure to the Federal procedural system and to carry the message back to the States; and that, in some vague way, it creates a valuable "partnership" between State and Federal courts. I have dealt with these in my 1972 lectures on Federal jurisdiction at pp. 144-45; they have even less force now, if that were possible, than they did then.

The explosion of Federal question cases insures that Federal judges will not be lacking in breadth; it also insures that lawyers of every sort will increasingly find themselves in Federal court without the aid of diversity. And in 1977 diversity is hardly needed to make State courts aware of the Federal rules of civil procedure which were adopted in 1938. I likewise see no merit in the argument so frequently put forward by lawyers, namely, that it is somehow wrong to deprive them of their opposition to sue in Federal or State court, depending on which they think will best serve their client's cause. The Federal courts were intended from the outset to be courts of severely limited jurisdiction; lawyers and their clients are not entitled to go there unless there is some good reason why a Federal court should hear their case. So we are left with the question whether diversity jurisdiction should be retained because an out-State plaintiff or defendant cannot get a fair trial in a State court.

Clearly this argument has no application to the basic thrust of the ALI proposal embodied in H.R. 5546, the proposal embodied in H.R. 7243 or the Department of Justice proposal, all of which would abolish the right of the in-State plaintiff to invoke Federal jurisdiction against an out-State defendant-over half the total. Decision whether to enact one of these proposals or to go the whole way, as is done in H.R. 761, as the Judicial Conference now advocates, depends on one's perception concerning the danger of prejudice in the State courts to the nonresident plaintiff or the defendant. More accurately, the question is not whether there may be such prejudice in a State court but how much more there may be in the State court than in the Federal court. This is something that is almost impossible to assess.

The only attempts at empirical study were made more than a decade ago, rested on meagre data and yielded disparate results. My own estimate is that there is very little prejudice against out-staters qua out-staters, although there may be prejudice by jurors in favor of the individual, whether in-State or out-State, against the large corporation, again regardless of corporate residence, or prejudice in favor of the little fellow against the big. Even if one were to assume that some jurors are prejudiced against out-staters-and Federal jurors would be almost as likely to be so as State there is the further question of what a Federal judge can do about this. My own view is that we do not live in a perfect world and that, with diversity jurisdiction shrunk as it would be by eliminating the in-State plaintiff, it is not worthwhile preserving the balance simply because there may be a few cases each year where a Federal court might reach a fairer result. I adhere to the statement I made five years ago that "the use of scant Federal judgepower cannot be justified simply on the basis that in the small proportion of diversity cases where prejudice against the out-stater may exist, a Federal court might be of some help in a few." I recognize that, in addition to the fear of prejudice properly so called, there is a more generalized distrust of some State