Court Congestion as an Explanation for Rising Attorney Fees

A judge facing exogenous constraints on his pecuniary income has an incentive to reduce his workload to increase his private welfare. In the face of a large caseload, this incentive will induce judges to attempt to terminate some cases as quickly as possible. In class action cases, failing to grant an attorney’s fee request will delay termination. This conflict is likely to lead judges to authorize higher fees as court congestion increases. Increasing congestion in the federal courts then might play a role in explaining the upward trend that exists in class action attorney fees. Using Eisenberg and Miller’s class action settlement data, we show that attorney fees are significantly and positively related to the congestion level of the court hearing the case. This effect explains some, but not all, of the significantly positive trend observed in the data.