FEDERAL RULES OF PROCEDURE: WHY DOES THE GOVERNMENT GET MORE TIME?
Journal of Trial Advocacy
33, Pages 493-520
Designated by Brackets]
the foundation of our civil liberty lies the principle which denies
to government officials an exceptional position before the law and
which subjects them to the same rules of conduct that are commands to
of the Anglo-Saxon legal tradition are familiar with the icon Lady
Justice: a woman of pure heart, holding the scales of justice in
Many attorneys have scales-of-justice business cards and
letterheads, and many judges have scales-of-justice plaques and
statues adorning their benches and chambers. This balance signifies
the stated aim of the law that parties before the courts are to have
access to equal and fair hearings, fair procedures and fair
adjudications. The Supreme Court building in Washington, D.C.
prominently bears the motto: “Equal Justice Under Law.”
then do the rules of procedure in place in all federal courts plainly
and explicitly tilt the procedures for civil and criminal litigation
in favor of the government?
Specifically, why do the Federal Rules of Procedure applicable at
both the trial and appellate levels provide more time to the
government to respond to pleadings and briefs, greater privileges of
appearance, and greater ease of prosecuting and defending litigation?
Federal Rule of
12(a) provides that U.S. government parties have 60 days to answer
civil complaints, compared with only 20 days for private-sector
parties. (This same 60-day/20-day filing disparity applies to the
filing of cross-claims, counterclaims and third-party claims as
Federal Rule of
4(a) provides that litigants have 30 days to file appeals in civil
cases, “but if the United States or an officer or agency thereof
is a party, the notice of appeal may be filed by any party within 60
days after such entry”;
Federal Rule of
4(b) provides that the United States has 30 days to appeal from
criminal judgments, compared with only 10 days for criminal
Federal Rule of
Appellate Procedure 40(a)(1)
provides that petitions for rehearing “may be filed within 14 days
after entry of judgment” in a civil case unless “the United
States or its officer or agency is a party,” in which case any
party may seek rehearing within 45 days of judgment.
There are also
provisions of the Rules
grant the government greater privileges with regard to the filing of
briefs in support of government positions:
Federal Rule of
29 allows “[t]he United States or its officer or agency, or a
State, Territory, Commonwealth, or the District of Columbia” to
“file an amicus-curiae
brief without the consent of the parties or leave of court” while
“[a]ny other amicus
may file 
brief only by leave of court or if the brief states that all parties
have consented to its filing”;
U.S. Supreme Court
Rule 37.4 provides that “No motion for leave to file an amicus
brief is necessary if the brief is presented on behalf of the United
States by the Solicitor General; on behalf of any agency of the
United States . . . ; on behalf of a State, Commonwealth, Territory,
or Possession when submitted by its Attorney General; or on behalf
of a city, county, town, or similar entity when submitted by its
authorized law officer.” All other amici
are required to seek permission to file such briefs.
provisions of the Federal Rules of Procedure might be described as
In general, they grant the United States government and its
attorneys more time and filing advantages with regard to preparing
and submitting briefs and pleadings in U.S. courts than individuals
and private-sector parties. (The exceptions are the fore-mentioned
Rules 4(a) and 40(a)(1) of the Rules
of Appellate Procedure,
which grant privileges to all parties in litigation wherever the
United States is a party, thus creating disparities between cases
with government parties and cases without government parties.)
Research into the background of these filing requirement disparities
reveals that in general they were placed into the earliest editions
of the Federal
Rules of Civil Procedure,
Rules of Criminal Procedure,
and the Federal
Rules of Appellate Procedure.
no justifications for these filing requirement disparities have ever
However, staff at the Administrative Office of U.S. Courts have
suggested that these governmental advantages are warranted because
the U.S. Justice Department faces greater bureaucratic burdens than
do private-sector parties.
appears that these filing requirement disparities have not sparked
any major legal or constitutional challenges.
Nor have scholars of law or the social sciences examined the
disparities in any prominent scholarly literature.
scholars appear to have taken much notice of them.
The law reviews are dotted with occasional criticisms of the Federal
but the filing requirement disparities have apparently 
evaded scholarly criticism or controversy.
have been recurring objections and criticisms of the Rules from some
but never, apparently, of the specific disparities discussed herein.
the absence of discussion and commentary regarding these unequal
filing requirements, the disparate requirements almost certainly
violate understood norms of constitutional law and tilt the scales of
justice in favor of the United States government in federal courts.
This article argues that the disparities place federal litigants on
an uneven 
field, giving an advantage to the government that is compounded over
time and with repetition. Moreover, the
disparities are not necessary to counteract any burden of
bureaucratic obstacles faced by the government, as such bureaucracy
actually strengthens the government’s position of advantage over
HISTORY OF THE FEDERAL RULES OF PROCEDURE
Federal Rules of Procedure are the joint creation of all three
branches of government. In 1934, Congress enacted the Rules Enabling
seeking to bring the varying procedural rules applied in America’s
federal courts into something of national uniformity.
The Act delegated the drafting of Rules of Civil Procedure to the
Supreme Court, which was to empanel a special committee for that
purpose. Executive branch input was obtained by giving the Attorney
General a major role in reviewing and transmitting the Rules to
a painstaking four-year process, this advisory committee of the
Supreme Court produced what would come to be known as the Federal
Rules of Civil Procedure
in 1938. The Rules were codified under Title 28 of the U.S. Code and
thus speak with the authority of Congress as well as the judiciary.
were followed by Rules
of Criminal Procedure
of Appellate Procedure
of Bankruptcy Procedure
came in 1983.
Today there are five
standing Advisory Committees of the U.S. Judicial Conference,
respectively responsible for considering proposed amendments to the
Rules of Civil Procedure,
Rules of Criminal Procedure,
Rules of Bankruptcy Procedure,
Rules of Appellate Procedure
and the Federal
Rules of Evidence.
Members of each committee are nominated by the Chief Justice, and
each committee has always included at least one representative of the
U.S. Attorney General. The advisory committees routinely propose
rules, subject them to public comment, and then submit them to the
Standing Committee on Rules of Practice and Procedure.
Amendments are then submitted to the Judicial Conference, which
recommends them to the Supreme Court for approval.
The Conference is chaired by the Chief Justice of the Unites States
and consists of the Chief Justice, the chief judge of each circuit
court of appeals, a district judge from each regional circuit, and
the chief judge 
the Court of International Trade.
The Committee’s explanatory notes are published in the bound
volumes of the respective Federal Rules, and are occasionally cited
as authoritative sources when courts must interpret the rules.
RULES OF PROCEDURE AND THE PROBLEM OF UNFAIRNESS
continuing existence of the filing requirement disparities shows that
the advancement of governmental privilege is not always checked by
the personal ambitions of government officeholders in supposedly
Where the government class as a whole stands to share 
an expansion of governmental power over the citizenry, separations of
power among branches become illusory.
All three branches of government—with the apparent tacit approval
of the legal profession—have ratified and advanced rules of
procedure that have rigged the federal courts in favor of the state
over the citizenry for more than half a century.
is another problem with the cooperative, multi-branch manner in which
the Rules were drafted and are maintained. With the Supreme Court
granting its stamp of approval upon the Rules, few litigators have
dared to challenge them. Justices Black and Douglas voiced this very
concern in 1963 when they suggested that “to sit in judgment on the
constitutionality of rules which we have approved” might be
embarrassing for both the Court and anyone seeking to challenge the
These warnings have been shown to have been predictive. No
provision of the Rules
of Civil Procedure
has been struck down in the seventy years that followed their
Court's 1941 decision in Sibbach
v. Wilson & Co.,
neither courts nor litigators have evinced much interest” in
challenging the Federal Rules of Procedure.
Why challenge rules, after all, when the rules have supposedly been
vetted and reviewed by the very courts that would hear any
the origin of the Federal Rules of Procedure in the 1930s, some
scholars and academics have criticized the Rules on grounds that they
improperly delegate lawmaking power to the judiciary.
Never, however, do the filing-requirement disparities under
consideration here appear to have been subjected to any concerted or
focused challenge or objection by lawyers on grounds that they game
federal courts in favor of the United States. It appears that only
two individuals—both nonlawyers—have ever challenged any of the
filing requirement disparities in court. In
1983, a pro
litigant sued Bureau of Alcohol, Tobacco and Firearms agents in their
individual and official capacities, asserting that in their
individual capacities the agents must answer within 20 days. The
U.S. District Court for the Southern District of Texas and the U.S.
Fifth Circuit both held that the agents were entitled to the
government (60-day) answer period even in their individual
litigant named Leonard A. Peth once challenged the government’s
60-day allowance for answering a civil complaint with the argument
that the three-fold increase in time for government agents conferred
an unconstitutional “title of nobility” upon the government. The
U.S. District Court for the Eastern District of Wisconsin summarily
denied the challenge in 1985.
No analysis was given.
CONCEPT OF EQUAL PROCEDURES IN ANGLO-AMERICAN LAW
their plain face, the filing requirement disparities violate the
basic principle that parties before the courts are to be equals in an
adversarial system. Constitutional standards grounded in the Equal
Protection Clause, the Due Process Clauses of the Fifth and
Fourteenth Amendments, and Article III itself all provide support for
the mandate of symmetry and equality in court procedures. Under
current versions of the Federal Rules of Civil, Appellate, and
Supreme Court Procedure, litigants who face the United States
government in federal court are literally playing against a stacked
deck, with an opponent who enjoys a threefold advantage in time
allowed to make some important decisions, and a two- or three-fold
time advantage when deciding whether to appeal.
This governmental filing advantage has almost certainly helped
transform the United States from a beacon of freedom into a land of
expanding federal jurisdiction over national affairs, exploding
prison populations, and federal conviction rates as high as 95
percent in recent years.
idea that fair courts require equal rights of procedure has been a
component of Anglo-American common law for centuries. James Wilson,
one of only six people who signed both the Declaration of 
and the U.S. Constitution (and a member of the first panel of the
U.S. Supreme Court), wrote in the 1790s that the concept of common
law itself is grounded in equality of procedure. “[T]he same equal
right, law, or justice,” wrote Wilson, is “due to persons of all
Several American colonies required equal treatment for all parties
before courts, regardless of wealth.
For example, the Pennsylvania Charter of Privileges (October 28,
1701) stated in Section IV that “all Criminals shall have the same
Privileges of Witnesses and Council as their Prosecutors”).
Stephen Hopkins, Rhode Island’s eminent signer of the Declaration
of the Independence, wrote in 1764 that “just and equal laws”
were among the fundamental rights of the American colonists.
to Yale Law Professor Akhil Amar, the Framers who debated the
criminal procedure provisions of the Bill of Rights were obsessed
with procedural fairness. “Notions of basic fairness and symmetry”
were the mainstay of the Sixth Amendment.
“In formulating the precise wording of the compulsory process
clause,” according to Amar, “Madison seems to have borrowed from
which also explicitly embraced the symmetry principle.”
The First Congress drafted a statute defining the rights of capital
defendants in 1790,
again emphasizing what Amar calls “the symmetry principle.”
the Constitution’s Framers firmly rejected the lopsided
inquisitorial court procedures that accompanied the notorious British
Star Chamber court of the seventeenth century.
When colonial inquisitors repeatedly harassed and investigated John
Hancock’s shipping business, Boston newspapers proclaimed that
Boston was under “military rule” and that such proceedings were
“more alarming than any that had appeared to the world, since the
abolition of the Court of Star Chamber.”
In THE FEDERALIST No. 78, widely regarded as a primary source of
illumination regarding the original intent behind the Constitution’s
judiciary provisions, Alexander Hamilton noted the toxicity of
“unjust and partial laws.” Or, as Justice Stephen J. Field wrote
in 1887, “[b]etween [the accused] and the state the scales are to
be evenly held.”
RIGHTS OF PROCEDURE UNDER AMERICA’S ADVERSARIAL SYSTEM
procedures are not simply an end; they are a means to creating
accurate and sound court outcomes.
“Our adversary system is premised upon the idea that the most
accurate and acceptable outcomes are produced by a real battle
between equally-armed contestants; thus the adversary system
requires, if it is to achieve these goals, some measure of equality
in the litigants' capacities to produce their proofs and arguments.”
adversary system presupposes,” wrote Justice Potter Stewart, that
“accurate and just results are most likely to be obtained through
contest of opposed interests.”
Thus, he continued, the State's interest in child's welfare may be
best served by even-handed hearings in which both parents and the
State are represented by counsel, without whom the contest of
interests may become unwholesomely unequal.
The Supreme Court also recognized this important benefit of
impartial adversarial procedures in Little
in which the Court held that procedures that denied DNA testing to an
indigent father denied due process in part because they increased the
likelihood of inaccurate paternity findings.
But for an
adversarial system to function properly, according to William
Rubenstein, “the parties must be somewhat equally capable of
producing their cases.”
Under the American constitutional structure, “[l]aw would not be
law as we know it without the requirement of evenhandedness.”
If one party has more time and resources to develop its cases than
others, the law is subverted by the accumulation of inaccurate or
even deceptive court findings.
Even a filing deadline advantage of 20 or 30 days, or the ability to
briefs without first gaining permission when opponents must draft
motions and seek permission, can decrease the “accuracy and
acceptability of adjudicative outcomes.”
must be recognized that the government’s additional time for filing
pleadings translates into more drafting time, more research time, and
more time for government lawyers to think about and confer over
litigation strategy. The government’s greater ease of submitting
briefs means lower litigation costs for the government compared 
other parties. The filing requirement disparities grant the
government a privileged status that is inconsistent with a fair
unequal filing provisions mandated by the Federal Rules of Procedure
mean that disputes with the United States government (and in some
circumstances, state governments) are always litigated from an
unequal footing. When combined with extraprocedural factors such as
an increasingly instrumentalist Congress,
an empowered executive branch,
a prosecution-friendly bar and bench,
and an apathetic electorate, the filing requirement disparities
contribute to the growing power of the government over individuals,
businesses and personal affairs.
FILING REQUIREMENT DISPARITIES VIOLATE DUE PROCESS AND EQUAL
seems axiomatic that the original meaning of due
process included a requirement of equal
Judge Robert Bork, whose scholarship 
generally cast the Fourteenth Amendment’s due process and equal
protection clauses in extremely limiting terms, has suggested that
the Framers of the Fourteenth Amendment intended the two provisions
only as guarantees of fair and equal court procedures.
According to this view, fair procedure was originally considered to
be the central meaning of both clauses.
Indeed, according to John Lebsdorf, “[e]qual protection analysis
[is] often interchangeable with due process analysis.”
Although the courts
have been reluctant to strike down procedural rules on equal
they have invalidated rules that explicitly game the courts in favor
of one side over others in litigation.
the U.S. Supreme Court struck down filing fees for indigents seeking
divorce on grounds that such fees strip poor citizens of access to
the legal system as required by the Constitution.
Court's holding was based on both the Equal Protection and 
The Court has also held that such constitutional principles require
indigent defendant is entitled to a free transcript of his trial
court proceedings to prepare his appeal.
IMPACTS OF PROCEDURAL FILING DISPARITIES
seemingly meager time advantages (e.g.,
60 days versus 20 days for filing civil answers; 30 days versus 10
days for filing notices of criminal appeals) provided to the
government by the Federal Rules may strike some observers as trivial
or unimportant. In practice, most federal courts readily grant
continuances, allowing parties extra time to prepare filings.
Likewise, the Supreme Court rarely
denies a motion to file an amicus
it is highly likely that the disparities
create real differences in the outcomes of some cases. As the
Supreme Court has recognized, seemingly minor impediments to fair
procedures and equal treatment (such as a $1.50 poll tax on voters)
may—in the aggregate—create drastically unfair and unequal
outcomes, with profound effects upon power and politics in American
life and culture.
compounded over time and jurisdictions since the 1930s, differing
deadlines for drafting briefs and pleadings have translated into
millions of hours of extra time for Justice Department lawyers to
research, consider and prepare litigation documents. The disparities
have almost certainly contributed to profound inequalities exhibited
between Americans of different social, income and political strata in
and to the steady growth of prisons and convict populations that has
plagued the United States over the past century.
We know from
empirical evidence that the filing of amicus
briefs on behalf of the government is associated with successful case
outcomes for the government in the U.S. Supreme Court. Over most of
the past century, amicus
filers have had a success rate of around .550, “that is, they filed
briefs supporting the winning side 55% of the time.”
And the Solicitor General—the Justice Department official who
represents the United States before the Supreme Court—is
by far the most consistently successful amicus
filer of all time.
Indeed, the Supreme Court’s opinions have cited the Solicitor
briefs in more than 40 percent of the cases where the Solicitor filed
a brief. Moreover, the Supreme Court’s adoption in 1939 of
procedural rules making it easier to file pro-government amicus
briefs than anti-government amicus
briefs is associated with increasing success rates for the U.S.
Solicitor General over the past half-century.
The frequency of the Court’s references to Solicitor General
briefs has risen each decade.
supporting the government became privileged and more amicus
briefs have been filed, the Solicitor General has become the Court’s
closest friend and by far its most successful one.
“In contrast . . . no such pattern of increased incidence of
citation” exists for the other major amicus
such as the ACLU or the U.S. Chamber of Commerce.
But the success rate began to increase only after the pro-government
filing requirement disparities were imposed in 1939.
The rate was less than 50 percent prior to 1937; afterward, it grew
to more than 50 percent and has risen each decade.
Of course, the
filing requirement disparities are not the only structural advantages
enjoyed by the government in federal court litigation.
government has been the unrecognized beneficiary of recent
fee-raising and access-limiting measures which have fallen on all
parties except the government during the past several years.
The bias of federal criminal courts in favor of the government has
been frequently observed.
Despite its purported orientation toward fairness and equality, the
justice system “proves so disproportionately harmful to minority
and indigent defendants” that inequality of outcome is one of its
most visible attributes.
But the filing requirement disparities must surely play some role in
what Christopher A. Bracy calls the “ongoing crisis of legitimacy
in the criminal justice process.”
ARE THE FILING
REQUIREMENT DISPARITIES NECESSARY TO COUNTER STRUCTURAL DISADVANTAGES
FACED BY THE U.S. GOVERNMENT?
are two points regarding this proposition that merit consideration.
First, no known empirical fact-finding has been conducted to
determine whether such (alleged) bureaucratic inefficiency actually
does place the U.S. Justice Department at a disadvantage or, if so,
whether the given court filing advantages are appropriate (e.g.,
whether 40 days’ advantage for filing civil answers is more
appropriate than, say, 5 days). Second, such a proposition belies
decades of research into political economy and organizational
dynamics that suggests that large, repeat litigants actually enjoy
decisive advantages in litigation.
to Max Weber’s theories of bureaucracy and rationalization, systems
of interaction that are continuous over numerous repetitions
naturally become more efficient.
And because large, powerful bureaucracies are capable of
systematically substituting employees and material, and engage large
numbers of duty-bound workers in a predetermined chain of command
that maximizes the likelihood of completion of multiple tasks, they
can overcome a wide variety of challenges that would defeat smaller
In many real-world circumstances, the impersonal, machine-like
nature of large bureaucracies is a source of strength and speed
rather than weakness or sloth.
bureaucracies are expensive and sometimes cumbersome (and thus not
the best business models for all circumstances); but when deployed
over systems of continuous interaction such as the federal courts,
they create efficient machines for accomplishing multiple complicated
tasks simultaneously. Weber’s theory of bureaucracy explains how
the Army payroll can be disbursed in a timely, scheduled manner even
if the Army is facing battlefield setbacks on multiple fronts, how
General Motors can smoothly shift factory resources to produce more
or fewer vehicles in response to market conditions,
and how Microsoft can quickly adjust retail prices of its software
products so as to maximize numbers of purchasers and thereby alter
the direction of the market.
an insightful (and frequently referenced) 1974 article, Marc Galanter
suggested that repeat litigants such as the United States Justice
Department develop profound advantages over their competitors during
the course of repeated litigations.
The grinding regularity of constant litigation generates a momentum
in favor of repeat players, wrote Galanter, explaining why the
“haves” tend to dominate the “have-nots” in both civil and
Justice Department—“a repeat player par
from its massive economy of scale, enjoying low start-up costs for
addressing multifaceted cases, issues and arguments.
The Department’s bureaucratic organizational structure means it
can coordinate an array of personnel for litigation having profound
public impacts. Its vast 
filing cabinets of memoranda allow Assistant U.S. Attorneys to
quickly redraft briefs used in one district to suit the facts and
circumstances of cases in other districts.
importantly, the U.S. Justice Department’s regularity of appearance
allows it to “structure the next transaction” while litigating
its current cases.
It can adopt “strategies calculated to maximize gain over a long
series of cases, and influence the making of rules through
This greater range of focus allows the government to continually
expand legal rules that increase government power over American
By contrast, most private parties are “one-shotters” who focus
only on the outcomes of their own cases and have little interest in
establishing rules for generations afterward.
short, repeat litigants impose ever-increasing control over the
as opposed to individual case outcomes. Over time, wrote Galanter,
repeat players are able to influence the body of “precedent cases”
to be skewed in their favor.
Finally, repeat players are able to “concentrate their resources
on rule-changes that are likely to make a tangible difference. They
can trade off symbolic defeats for tangible gains”
and the ability to invest resources necessary to secure the
“penetration of rules favorable to them.”
the extent that “bureaucratic” problems—those associated with
multi-exchange, decision-based delays—do represent burdens to
burdens are commonly
shouldered by private parties more than government parties.
Private-sector parties are often in a far worse position than
federal prosecutors to answer civil complaints or criminal
indictments because they lack a clear avenue for identifying and
retaining counsel with the special expertise required to litigate
their cases effectively. By contrast, when the government is faced
with a legal claim or pleading, the government’s counsel of record
is often predetermined. When it is not, the Justice Department can
readily delegate cases to Assistant U.S. Attorneys having specific
knowledge or experience in the policy areas at issue.
that the Justice Department’s advocacy for its client (“the
United States”) is by conceptual proxy. Never do government
lawyers actually need to meet or negotiate with their client(s). But
attorneys for private litigants must certainly do so, and this
requirement adds a very real and complicating “bureaucratic”
burden to the work of private lawyers that is not shouldered by
government lawyers. In many situations, attorneys for criminal
defendants must scramble to meet with clients (who may be in prison
or otherwise of restricted mobility), relatives of clients who might
hold the purse strings for payment, and/or defense witnesses. Unlike
government lawyers—who are generally supported by investigative
teams of FBI, DEA or BATFE agents—private lawyers often moonlight
as their own investigators, engaging in time-consuming detective work
in addition to their legal advocacy. A dozen or more in-person or
telephone conversations may be called for before a private attorney
can properly complete a legal filing.
Justice Department’s increasing dominance over the direction of
federal jurisprudence is one of the most striking features of
American law since the nineteenth century. In the Department’s
140-year history, criminal conviction rates have increased from
general averages often below fifty percent
in the 1800s to generally above 90 percent by 
The number of federal prisoners has grown from around 1,000
in the 1880s
to more than 190,000 by 2006,
a multiple of 190 times, while the U.S. population increased by only
Federal sentences have generally increased over time,
and the ability of federal victims to sue (and, especially, to win
government officials has diminished since the 1800s.
Justice Department advocacy has steadily expanded the power of
federal agents to investigate, surveil and monitor the American
people, often in contradiction of centuries of precedents.
filing requirement advantages provided in the Federal rules have
allowed the government to select the most favorable forums for
employing government strategy; to emphasize different issues in
different courts; drop or compromise unpromising cases without
financial loss; stall some cases and push others; and create rule
conflicts in lower courts to encourage assumption of jurisdiction in
The aggregate advantage enjoyed by the Justice Department is
especially great regarding governmental impositions of policies of
New Deal Lawyers
(1993), Peter H. Irons described the deliberate and calculating
methods with which the F.D.R. Justice Department waged a war of
litigation against Supreme Court precedent and constitutional case
Roosevelt’s agency lawyers plotted and strategized before every
filing, letting some defeats stand in lower courts but appealing
others, forum-shopping for government-leaning judges, and
deliberately avoiding Supreme Court review of the most controversial
New Deal enactments.
rigging the federal courts in favor of the U.S. government was not
the intention of the drafters of the Federal Rules of Procedure, one
has difficulty guessing this in light of the filing requirement
disparities discussed herein. The
filing requirement disparities
allow the United States government and its attorneys more time and
filing advantages with regard to preparing and submitting certain
briefs and pleadings in U.S. courts than individuals and
private-sector parties. These disparities almost certainly
result in unequal treatment, unequal outcomes, and unequal bargaining
power between the United States government and the people who inhabit
and visit the United States.
Although the disparities plainly violate norms of constitutional
fairness, equality and due process, they have provoked nothing but
silence from the American bar and bench.
notion suggested by staff at the U.S. Administrative Office of U.S.
Courts—that the U.S. government needs greater time and privileges
for filing pleadings and briefs than other parties on account of the
government’s bureaucracy—evaporates upon inspection.
Bureaucratic organizational structures are used by large, powerful
institutions for a reason: they operate with profound advantages over
smaller autocratic structures because they can consistently deliver a
wide variety of goods and services in response to myriad
circumstances. When such bureaucracies are repeat players in courts
of law, they are able to impose a long-term strategy upon the
development of the law. The 
government’s constant advocacy in favor of increasing government
power and discretion and decreasing individual freedom is one of the
most salient aspects of governance in American life over the past
filing requirement disparities discussed herein—which provide the
government three-fold time advantages for filing notices of appeal in
criminal cases, three-fold time advantages for filing civil answers,
counterclaims and cross-claims, and greater ease of filing
pro-government as opposed to anti-government amicus
briefs in federal courts—imbue the government with advantages that
are expanded and compounded over time. If federal courts are to
become true venues for fairly resolving legal disputes with the
government, the filing disparities must be abolished.