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APH i b 1990 





//J-V/ irir 



Chief Judge Charles A. Moye, Jr. 

J pf. .Judicial Ethics Measure 
Judicial Conference Subcommittee Chairnian ''Held Constitutional 
Explains Process for Setting Judgeships ^ ' ^dS^Y ^.C. District Court 

The constitutionality of judicial 

judge Charles A. Moye, Jr., was ap- 
pointed to the federal trial bench for 
the Northern District of Georgia in 
,October 1970 and became chief iuiioo 



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"William H. Timbers and J. Blaine 
Anderson and District Judges 




ethics legislation passed in 1980 

was recently upheld by a district 

in a case brought by Judge 

ings (S.D. Fla.), who 

^ to bar an investigation 


itings, who was tried 
4l^ d on charges of bribery 
ion of justice in 1983, 
ject of a complaint to 
4^ Circuit Judicial Coun- 
le 1980 legislation, the 
acils Reform and Judi- 
th and Disability Act, 28 
!(c), a circuit judicial 
take sanctions — short 
(^ against a judge found 
conduct in office. The 
;ainst Judge Hastings 
11^ both to the criminal 
hich he was acquitted 
ct revealed during the 



Satellite Seminar on 
Crime Control Act Set 

District judges and other per- 
sonnel in 68 districts, as well as 
circuit judges, have been notified 
of a Center-sponsored satellite 
video seminar on the Compre- 
hensive Crime Control Act of 
1984. The seminar, to be broad- 
cast Jan. 17 in 29 cities, will pre- 
sent an overview of the provi- 
sions of the legislation that most 
affect district judges and sup- 
porting personnel. 

The Center will make video- 
tapes of the program available to 
all personnel as soon as possible. 


own recommendations to the Judi- 
cial Conference, which acts on 
them and makes appropriate rec- 
ommendations to Congress. The 
other responsibility is a general 
oversight of the statistical func- 
tions of the Statistical Analysis and 
Reports Division (SARD) of the 
Administrative Office. The sub- 
committee counsels staff of that di- 
vision with respect to reports con- 
cerning the judiciary and its 
components. Where changes in the 
statistical system are required and 
are of a relatively minor nature, the 
matter goes no further. Where the 
changes are of a substantial nature, 
the subcommittee makes its recom- 
mendations with respect to such 
changes to the Committee on Court 
See MOYE, page 4 

ngs sued in the District 

District of Columbia, 

the investigation of 

See ETHICS, page 10 

AO Director Foley 
To Retire 

William E. Foley, director of the 
Administrative Office of the United 
States Court, has submitted to the 
Chief Justice a letter announcing 
his retirement from his position 
upon the designation of his 
successor. Mr. Foley has served in 
the Administrative Office since 
1964, first as deputy director and, 
since 1977, as director. 

The Chief Justice said of Mr. 
Foley, "All can join in wishing Bill 
Foley much happiness and good 
health in the years ahead. His col- 
leagues and friends are well aware 
See FOLEY, page 2 

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hief Judge Charles A. Moye, Jr. ^'*"f .S/fV t't -.Judicial EthicS MeaSUTC 

udicial Conference Subcommittee Chaii^^n Held Constitutional 
explains Process for Setting Judgeships 

judge Charles A. Moye, jr., was ap- 
ointed to the federal trial bench for 
he Northern District of Georgia in 
)ctober 1970 and became chief judge 
n that court in July 1979. 

In the following interview. Chief 
udge Moye describes the process for 
taking the federal courts' biennial rec- 
mmendation to Congress for addi- 
ional judgeships and details the fac- 
jrs considered by the Subcommittee on 
udicial Statistics in initiating that 
ecommendation . judge Moye has been 

member of the statistics subcommit- 
ee since 1975 and its chairman since 

Chief judge Moye holds undergrad- 
\ate and law degrees from Emory 

You've been a member of the Ju- 
licial Conference's Subcommittee 
>n Judicial Statistics since 1975 
ind have chaired that subcommit- 
ee since 1980. Would you briefly 
lescribe the subcommittee's 

The Subcommittee on Judicial 
itatistics, of which Circuit Judges 
Villiam H. Timbers and J. Blaine 
Anderson and District Judges 

Satellite Seminar on 
Crime Control Act Set 

District judges and other per- 
sonnel in 68 districts, as well as 
circuit judges, have been notified 
of a Center-sponsored satellite 
video seminar on the Compre- 
hensive Crime Control Act of 
1984. The seminar, to be broad- 
cast Jan. 17 in 29 cities, will pre- 
sent an overview of the provi- 
sions of the legislation that most 
affect district judges and sup- 
porting personnel. 

The Center will make video- 
tapes of the program available to 
all personnel as soon as possible. 

Chief judge Charles A. Moye, jr. 

James P. Churchill and Tom Stagg 
are also members, has two basic 
functions. The first and best 
known is making biennial recom- 
mendations to its parent commit- 
tee, the Committee on Court Ad- 
ministration, with respect to the 
needs for additional Article III 
judgeships and providing the sta- 
tistical and factual bases to support 
the requests. The parent committee 
then acts on the subcommittee's 
recommendations and transmits its 
own recommendations to the Judi- 
cial Conference, which acts on 
them and makes appropriate rec- 
ommendations to Congress. The 
other responsibility is a general 
oversight of the statistical func- 
tions of the Statistical Analysis and 
Reports Division (SARD) of the 
Administrative Office. The sub- 
committee counsels staff of that di- 
vision with respect to reports con- 
cerning the judiciary and its 
components. Where changes in the 
statistical system are required and 
are of a relatively minor nature, the 
matter goes no further. Where the 
changes are of a substantial nature, 
the subcommittee makes its recom- 
mendations with respect to such 
changes to the Committee on Court 
See MOYE, page 4 

198 fiy D.C. District Court 

The constitutionality of judicial 
ethics legislation passed in 1980 
was recently upheld by a district 
court in a case brought by Judge 
Alcee Hastings (S.D. Fla.), who 
was seeking to bar an investigation 
of his conduct. 

Judge Hastings, who was tried 
and acquitted on charges of bribery 
and obstruction of justice in 1983, 
was the subject of a complaint to 
the Eleventh Circuit Judicial Coun- 
cil. Under the 1980 legislation, the 
Judicial Councils Reform and Judi- 
cial Conduct and Disability Act, 28 
U.S.C. § 372(c), a circuit judicial 
council can take sanctions — short 
of removal — against a judge found 
guilty of misconduct in office. The 
complaint against Judge Hastings 
was related both to the criminal 
charges on which he was acquitted 
and to conduct revealed during the 
criminal trial. 

Judge Hastings sued in the District 

Court for the District of Columbia, 

claiming that the investigation of 

See ETHICS, page 10 

AO Director Foley 
To Retire 

William E. Foley, director of the 
Administrative Office of the United 
States Court, has submitted to the 
Chief Justice a letter announcing 
his retirement from his position 
upon the designation of his 
successor. Mr. Foley has served in 
the Administrative Office since 
1964, first as deputy director and, 
since 1977, as director. 

The Chief Justice said of Mr. 
Foley, "All can join in wishing Bill 
Foley much happiness and good 
health in the years ahead. His col- 
leagues and friends are well aware 
See FOLEY, page 2 



A Message from 
The Chief Justice 

Editor's Note: From time to time, The Third 
Branch will present a comment by the Chief Justice on 
a matter of concern to the judiciary. 

Perhaps we have been talking, writing, and meeting too 
much about the "litigation avalanche." Possibly we should fo- 
cus on specific mechanisms to deal with the litigation and for- 
get the colorful terminology. 

One area for swift, easy improvement is the use of a jury 
pool in a multiple-judge court. Some districts allow each judge 
to have a separate jury list. A pool method is desirable in any 
court and surely imperative in a court of more than four 
judges. Tremendous savings in budget dollars can be achieved 
by not calling more jurors than are needed. 

Apart from dollar savings, persons who have been called for 
jury duty will go away with a much better attitude toward the 
court system if they have had their time used efficiently. It is 
difficult to speak of jury service as a solemn obligation of citi- 
zenship if people are called to the courthouse only to have their 
time "frittered away" watching TV and reading old maga- 
zines — or just waiting to be called. 

Every court that is not using a jury pool method owes it to 
the system to move in that direction. 

Taped Programs Explain Bankruptcy Act Amendments 

The Center recently produced 
two video/audio programs on the 
1984 bankruptcy amendments. "Ju- 
risdiction Under the 1984 Bank- 
ruptcy Act," featuring Professor 
Lawrence P. King of New York 
University Law School, is a 2-hour 
and 29-minute program designed 
primarily to help district judges 



Published monthly by the Administra- 
tive Office of the U.S. Courts and the 
Federal Judicial Center. Inquiries or 
changes of address should be directed 
to 1520 H Street, N.W., Washington, 
DC 20005. 


Alice L. O'Donnell, Director, Division 
of Inter-Judicial Affairs and Informa- 
tion Services, Federal Judicial Center. 
Joseph F. Spaniol, Jr., Deputy Director, 
Administrative Office of the U.S. Courts. 

understand the jurisdictional and 
structural changes to title 28 re- 
sulting from the 1984 legislation. It 
describes "core" and "non-core" 
proceedings, withdrawal, absten- 
tion, transfer of cases, jury trials, 
and bankruptcy appeals. (The cata- 
log number for the video program 
is Vj-066, for the audio, AJ-0679.) 

"The 1984 Bankruptcy Amend- 
ments," featuring Professor King 
and George B. Triester, is a 2-hour 
and 40-minute program that re- 
views the jurisdictional and struc- 
tural amendments described 
above, but also discusses the major 
amendments to the bankruptcy 
code made by the 1984 legislation. 
The presentation presumes a work- 
ing knowledge of title 11 and of the 
relevant bankruptcy provisions of 
title 28. Substantive provisions dis- 
cussed include executory contracts 
See VIDEO, page 10 


• The December 1984 issue of 
The Third Branch included a brief 
reference to a study of judicial re- 
straint on the part of recently ap- 
pointed federal judges. The Third 
Branch intended no implications re- 
garding the exercise of judicial re- 
straint by other federal judges, nor 
any intimation of the definition of 
the term or of the validity of the 
study. We regret any negative in- 
ferences that may have been 

We appreciate hearing from our 
readers concerning any material 
published in The Third Branch. 
» » » 

• Former Chief Judge Juan 
Torruella of the District of Puerto 
Rico was sworn in as the first cir- 
cuit judge from Puerto Rico in cere- 
monies in November. 

Lauding Judge Torruella' s eleva- 
tion to the First Circuit by Presi- 
dent Reagan as "historic," Chief 
Judge Levin H. Campbell said at 
the ceremonies that it was "high 
time for a judge from Puerto Rico 
to join us." 

FOLEY, from page 1 

of the many contributions he has 
made to the federal courts 
throughout the years. His strong 
leadership will be missed." 

Applicants wishing to be consid- | 
ered for this position should file a 
letter application and curriculum 
vita with the Chief Justice of the 
United States, Supreme Court of 
the United States, Washington, DC 
20543. To assure consideration, ap- 
plications should be received by 
Feb. 1, 1985. 

The salary of the director is 
equivalent to that of a federal dis- 
trict judge, currently $76,000 per 
year. ) 

A full story on Director Foley's 
retirement will be published in the 
next issue of The Third Branch. U\ 



Desk Book for 
Chief Judges Published 

The Desk Book for Chief Judges of 
United States District Courts, a 
new Center publication by 
Russell R. Wheeler, has recently 
been distributed to chief district 
and circuit judges, clerks of 
court, and district and circuit 

The Desk Book details the many 
duties assigned to chief judges 
and discusses the various offices 
and personnel within and with- 
out the federal courts with whom 
chief district judges deal. De- 
signed to be part of the chief 
judge's office, the Desk Book can 
be maintained and augmented as 
the incumbent chief judge sees fit 
and reviewed with the next chief 
judge at the time of a transition. 

Because distribution of the 
Desk Book has been limited to the 
groups named above, others who 
wish to review it should contact 
one of those persons. Revised 
and updated pages will be dis- 
tributed periodically. 

Most Trial Lawyers Favor Judge Intervention 
In Settlement Talks, ABA Study Finds 



Most trial lawyers would prefer 
that federal judges participate in 
settlement negotiations rather than 
rely on counsel to conduct such 
talks, an American Bar Association 
survey has found. 

The study, cosponsored by the 
Judicial Administration Division's 
Lawyers' Conference and the Na- 
tional Conference of Federal Trial 
Judges, included a poll of attorneys 
who practice in four federal district 
courts. More than 3,400 lawyers in 
the Northern District of California, 
the Western District of Texas, the 
Western District of Missouri, and 
the Northern District of Florida 
were sent questionnaires; nearly 55 
percent responded. 

Eighty-five percent of the re- 
spondents believed that involve- 
ment of a federal judge in settle- 
ment proceedings increases the 
chances of achieving a settlement. 
But many of those favoring such 
judicial intervention thought it 

should come from a judge other 
than the one who would try the 
case if no settlement were reached. 

Magistrate Wayne D. Brazil 
(N.D. Cal.), who was a professor at 
Hastings College of the Law and 
supervised the survey for the Law- 
yers' Conference's Federal Courts 
Committee, said that the survey's 
findings might have significant 
practical benefits if "judges begin 
to develop the capacity to predict 
how lawyers in different situations 
will react to different judicial ap- 
proaches to settlement." 

Plaintiffs' lawyers seemed to fa- 
vor slightly more intervention than 
did defendants' attorneys. Two- 
thirds of plaintiffs' lawyers felt that 
a judge who thinks a settlement is 
unfair should warn a party about 
to agree to it, whereas less than 
one-third of the defense bar felt 
that the judge should issue such a 
warning. ■ 

1985 Circuit Judicial Conferences 

This volume Is bound without 

which is/are unavailable. 

Nov. 3-7 
Sept. 4-6 
Oct. 6^ 
June 27-29 
May 19-22 
May 14-18 
May 12-14 
July 23-26 
May 28-31 
Sept. 4-7 
May 12-15 
May 18-21 
May 17 

San Juan, P.R. 
Hershey, Pa. 
Hershey, Pa. 
Homestead, W. Va. 
Austin, Tex. 
Louisville, Ky. 
Chicago, 111. 
Little Rock, Ark. 
Tucson, Ariz. 
Tulsa, Okla. 
Miami, Fla. 
Williamsburg, Va. 
Washington, D.C. 


Jan. 21-22 Judicial Conference 
Committee on Court 

Jan. 21-22 Judicial Conference 
Committee on Judicial Ethics 

Jan. 23-24 Judicial Conference Im- 

tee on 
eys to Jan. 
Federal Practice 
Jan. 23-25 Judicial Conference Jan. 
Committee to Implement the 
Criminal Justice Act 
Jan. 24-25 Judicial Conference Ad Jan, 
Hoc Committee on Inns of 

28-30 Workshop for Judges of 

the Ninth Circuit 
31 -Feb. 1 Judicial Conference 

Advisory Committee on 

Bankruptcy Rules 
31-Feb. 2 Judicial Conference 

Committee on the Budget 



A Message from 
The Chief Justice 

Editor's Note: From time to time, The Third 
Branch will present a comment by the Chief Justice on 
a matter of concern to the judiciary. 

Perhaps we have been talking, writing, and meeting too 
much about the "litigation avalanche." Possibly we should fo- 
cus on specific mechanisms to deal with the litigation and for- 
get the colorful terminology. 

One area for swift, easy improvement is the use of a jury 
pool in a multiple-judge court. Some districts allow each judge 
to have a separate jury list. A pool method is desirable in any 
court and surely imperative in a court of more than four 
judges. Tremendous savings in budget dollars can be achieved 
by not calling more jurors than are needed. 

Apart from dollar savings, persons who have been called for 
jury duty will go away with a much better attitude toward the 
court system if they have had their time used efficiently. It is 
difficult to speak of jury service as a solemn obligation of citi- 
zenship if people are called to the courthouse only to have their 
time "frittered away" watching TV and reading old maga- 
zines — or just waiting to be called. 

Every court that is not using a jury pool method owes it to 
the system to move in that direction. 

Taped Programs Explain Bankruptcy Act Amendments 


• The December 1984 issue of 
The Third Branch included a brief 
reference to a study of judicial re- 
straint on the part of recently ap- 
pointed federal judges. The Third 
Branch intended no implications re- 
garding the exercise of judicial re- 
straint by other federal judges, nor 
any intimation of the definition of 
the term or of the validity of the 
study. We regret any negative in- 
ferences that may have been 

We appreciate hearing from our 
readers concerning any material 
published in The Third Branch. 

» * » I 

• Former Chief Judge Juan 
Torruella of the District of Puerto 
Rico was sworn in as the first cir- 
cuit judge from Puerto Rico in cere- 
monies in November. 

Lauding Judge Torruella' s eleva- 
tion to the First Circuit by Presi- 
dent Reagan as "historic," Chief 
Judge Levin H. Campbell said at 
the ceremonies that it was "high 

The Center recently produced 
two video/audio programs on the 
1984 bankruptcy amendments. "Ju- 
risdiction Under the 1984 Bank- 
ruptcy Act," featuring Professor 
Lawrence P. King of New York 
University Law School, is a 2-hour 
and 29-minute program designed 
primarily to help district judges 



Published monthly by the Administra- 
tive Office of the U.S. Courts and the 
Federal Judicial Center. Inquiries or 
changes of address should be directed 
to 1520 H Street, N.W., Washington, 
DC 20005. 


Alice L. O'Donnell, Director, Division 
of Inter-Judicial Affairs and Informa- 
tion Services, Federal Judicial Center. 
Joseph F. Spaniol, Jr., Deputy Director, 
Administrative Office of the U.S. Courts. 


,^ i — 

suiting f 
tion, tra 
and ban) 
log num 
is VJ-066 

and Geo 
and 40-1 
views th 
tural a 
above, b 

code maCt^. >^y mv xy>j-i icgia 

The presentation presumes a work- 
ing knowledge of title 11 and of the 
relevant bankruptcy provisions of 
title 28. Substantive provisions dis- 
cussed include executory contracts 
See VIDEO, page 10 

equivalent to that of a federal dis- 
trict judge, currently $76,000 per 
year. f 

A full story on Director Foley's 
retirement will be published in the 
next issue of The Third Branch. ■ 



Desk Book for 
Chief Judges Published 

The Desk Book for Chief Judges of 
United States District Courts, a 
new Center publication by 
Russell R. Wheeler, has recently 
been distributed to chief district 
and circuit judges, clerks of 
court, and district and circuit 

The Desk Book details the many 
duties assigned to chief judges 
and discusses the various offices 
and personnel within and with- 
out the federal courts with whom 
chief district judges deal. De- 
signed to be part of the chief 
judge's office, the Desk Book can 
be maintained and augmented as 
the incumbent chief judge sees fit 
and reviewed with the next chief 
judge at the time of a transition. 

Because distribution of the 
Desk Book has been limited to the 
groups named above, others who 
wish to review it should contact 
one of those persons. Revised 
and updated pages will be dis- 
tributed periodically. 

Most Trial Lawyers Favor Judge Intervention 
In Settlement Talks, ABA Study Finds 


Jan. 6-12 Seminar for Newly Ap- 
pointed District Judges 

Jan. 7-8 Judicial Conference Com- 
mittee on the Operation of 
the Jury System 
10-11 Judicial Conference 
Committee on the Adminis- 
tration of the Bankruptcy 

14-15 Judicial Conference 
Committee on the Adminis- 
tration of the Criminal Law 
14-15 Judicial Conference 
Committee on the Adminis- 
tration of the Probation 

Jan. 21-22 Judicial Conference 
Committee on Court 

Jan. 21-22 Judicial Conference 
Committee on Judicial Ethics 

Jan. 23-24 Judicial Conference Im- 




Most trial lawyers would prefer 
that federal judges participate in 
settlement negotiations rather than 
rely on counsel to conduct such 
talks, an American Bar Association 
survey has found. 

The study, cosponsored by the 
Judicial Administration Division's 
Lawyers' Conference and the Na- 
tional Conference of Federal Trial 
Judges, included a poll of attorneys 
who practice in four federal district 
courts. More than 3,400 lawyers in 
the Northern District of California, 
the Western District of Texas, the 
Western District of Missouri, and 
the Northern District of Florida 
were sent questionnaires; nearly 55 
percent responded. 

Eighty-five percent of the re- 
spondents believed that involve- 
ment of a federal judge in settle- 
ment proceedings increases the 
chances of achieving a settlement. 
But many of those favoring such 
judicial intervention thought it 

should come from a judge other 
than the one who would try the 
case if no settlement were reached. 

Magistrate Wayne D. Brazil 
(N.D. Cal.), who was a professor at 
Hastings College of the Law and 
supervised the survey for the Law- 
yers' Conference's Federal Courts 
Committee, said that the survey's 
findings might have significant 
practical benefits if "judges begin 
to develop the capacity to predict 
how lawyers in different situations 
will react to different judicial ap- 
proaches to settlement." 

Plaintiffs' lawyers seemed to fa- 
vor slightly more intervention than 
did defendants' attorneys. Two- 
thirds of plaintiffs' lawyers felt that 
a judge who thinks a settlement is 
unfair should warn a party about 
to agree to it, whereas less than 
one-third of the defense bar felt 
that the judge should issue such a 
warning. ■ 

1985 Circuit Judicial Conferences 

First Circuit 

Nov. 3-7 

San Juan, P.R. 

Second Circuit 

Sept. 4-6 

Hershey, Pa. 

Third Circuit 

Oct. 6^ 

Hershey, Pa. 

Fourth Circuit 

June 27-29 

Homestead, W. Va. 

Fifth Circuit 

May 19-22 

Austin, Tex. 

Sixth Circuit 

May 14-18 

Louisville, Ky. 

Seventh Circuit 

May 12-14 

Chicago, 111. 

Eighth Circuit 

July 23-26 

Little Rock, Ark. 

Ninth Circuit 

May 28-31 

Tucson, Ariz. 

Tenth Circuit 

Sept. 4-7 

Tulsa, Okla. 

Eleventh Circuit 

May 12-15 

Miami, Fla. 

D.C. Circuit 

May 18-21 

Williamsburg, Va. 

Federal Circuit 

May 17 

Washington, D.C. 

plementation Committee on 

Admission of Attorneys to 

Federal Practice 
Jan. 23-25 Judicial Conference 

Committee to Implement the 

Criminal Justice Act 
Jan. 24-25 Judicial Conference Ad 

Hoc Committee on Inns of 

Jan. 28-30 Workshop for Judges of 

the Ninth Circuit 
Jan. 31-Feb. 1 Judicial Conference 

Advisory Committee on 

Bankruptcy Rules 
Jan. 31-Feb. 2 Judicial Conference 

Committee on the Budget 



MOYE, from page 1 

Administration for subsequent 
transmittal to and action by the Ju- 
dicial Conference. The subcommit- 
tee also has the responsibility for 
developing improvements in the 
methods of assessing the needs for 
additional judgeships and also in 
general statistical methods. To that 
end, it works not only with the AO 
and the SARD but also with the 
Federal Judicial Center, particu- 
larly the Research Division. 

You mentioned developing the 
judgeship requirements for the 
federal system, a process that re- 
mains a mystery to many judges. 
Can you give a thumbnail descrip- 
tion that will help to clarify the 
process for them? 

First, it must be understood that 
judgeships are created by congres- 
sional action and not by the judici- 
ary. Therefore, to work backwards, 
a request for additional judgeships 
must be made to Congress by the 
Judicial Conference of the United 
States. The Judicial Conference 
acts on the basis of recommenda- 
tions to it by the Court Administra- 
tion Committee, which has dele- 
gated to the Subcommittee on 

the subcommittee are formulated at 
its spring/summer meeting, also in 
even years. 

To arrive at those recommenda- 
tions, the subcommittee, beginning 
in the summer of each odd year, 
seeks from every Article III court 
its request, if any, for additional 
judgeships. The subcommittee asks 
each court to furnish it with the in- 
formation that court believes rele- 
vant to its request. In the process, 
the subcommittee forwards to each 
court a questionnaire seeking an- 
swers to basic questions needed to 
evaluate a request. The subcom- 
mittee also solicits from each court 
information on any unique circum- 
stances affecting the court that in- 
dicate a need for special considera- 
tion by the subcommittee. 

Following receipt of answers to 
the questionnaire and any other in- 
formation submitted, the subcom- 
mittee considers, at its Novem- 
ber/December meeting in each odd 
year, the information received from 
the courts and the analysis pre- 
pared by the SARD and arrives at 
tentative recommendations. It then 
informs the courts involved of its 
tentative recommendations and 

"In cases in which that backlog is so serious that we feel 
that it would impede the ability of the active judges of the 
court to manage the court's caseload, we will consider the 
authorization of temporary judgeships." 

Judicial Statistics the responsibility 
for making initial recommenda- 
tions to it. While, formerly, re- 
quests for judgeships were made 
on a quadrennial basis, since 1980 
they have been made on a biennial 
basis, with requests from the Judi- 
cial Conference going to the Con- 
gress following Conference action 
at its fall meeting in even years. 
Therefore, the recommendations 
from the Court Administration 
Committee to the Judicial Confer- 
ence on this subject are formulated 
at its summer meeting in even 
years, and the recommendations of 

submits them to the judicial council 
for each circuit, soliciting a re- 
sponse from the council with re- 
spect to the requests by the courts 
in its circuit. The subcommittee 
considers that additional informa- 
tion at its spring/summer meeting 
(in even years) and formulates its 
recommendations on the courts' 
requests in time for transmittal to 
the Court Administration Commit- 

The subcommittee's schedules 
for court of appeals judgeships and 
for district court judgeships are 

You mentioned getting informa- 
tion from SARD as well as from - 
the individual courts. With these 
data in hand, what factors are con- 
sidered by your subcommittee in 
determining judgeship needs? 

The most important factor con- 
sidered by the subcommittee is a 
district court's weighted caseload 
per authorized judgeship. The sub- 
committee has, through long expe- 
rience, found that a weighted 
caseload of more than 400 filings 
per annum — civil and criminal — 
indicates a need for close scrutiny 
by the subcommittee. That is 
merely the beginning. The sub- 
committee considers in detail other 
factors such as utilization of magis- 
trates, number of divisions, geo- 
graphical location of the divisions, 
the complexity of cases, and all 
other particular matters that have 
been brought to its attention. 

Generally, the subcommittee has 
found that absent unusual circum- 
stances, a caseload of substantially ^ 
fewer than 400 filings per judge- M 
ship will not warrant the recom- 
mendation of an additional judge- 
ship. Similarly, a weighted 
caseload substantially in excess of 
400 will indicate the need for addi- 
tional district court judgeships. 
This factor, of course, is easier to 
apply in multiple-judge districts 
than it is in smaller districts, 
where, for example, the subcom- 
mittee would have difficulty— in a 
theoretical one-judgeship dis- 
trict — recommending an additional 
judgeship if the weighted caseload 
were, let's say, 450. 

We are currently evaluating pre- 
dictors of need for additional court 
of appeals judgeships. We are 
thinking in terms of about 300-plus 
dispositions on the merits as the 
starting point for consideration 
comparable to the figure of 400 
weighted filings we use for district 
courts. Other factors, principally 
complexity of the mix of cases, nec- 
essarily enter into our final recom- 

See MOYE, page 5 



/lOYE, from page 4 

The ultimate basis of the sub- 
ommittee's final recommendation 
or each court — court of appeals or 
istrict court — is its best judgment, 
n an individual-court basis, of the 
ntire amalgam of factors affecting 
hat court. 

You mentioned a standard of 400 
or a weighted caseload. How was 
hat standard formulated? How 
lid you arrive at that number? 

That particular factor is an em- 
irical one based on the observa- 
ions of the members of the sub- 
ommittee. Its validity has been 
eriously considered at nearly all of 
ur meetings since I have been a 
lember. It goes back to a time be- 
Dre 1 was a member of the sub- 
ommittee and originates in an em- 
irical analysis of workload in the 
Eastern District of Louisiana by 
udge Alvin Rubin, who formerly 
/as a member of the subcommit- 
se. The subcommittee, as I have 
aid, has considered it often; we 
lave also asked the Federal Judicial 
"enter's Research Division to con- 
ider the figure. We have recent re- 
earch by Barbara Meierhoefer of 
he Research Division that tends to 
alidate the figure. Generally, it is 

figure with which all the mem- 
)ers of the subcommittee feel com- 
ortable as a starting point. Again, 

must emphasize that it is only a 
tarting, and not an ending, point. 

"The most important fac- 
tor considered by the 
subcommittee is a district 
court's weighted caseload 
per judgeship." 

1 should mention that Judge Ru- 
nn and John Shapard, also of the 
Research Division, are providing 
he subcommittee with much wel- 
ome assistance in its consideration 
if court of appeals judgeship 

What about backlog or pending 

caseload? Does that ever come into 

It does. We have found courts 
that have a substantial backlog 
where the current filings would not 
indicate a need for an additional 
judgeship. In cases in which that 
backlog is so serious that we feel 
that it would impede the ability of 
the active judges of the court to 

Chief Judge Charles A. Moye, Jr. 

manage the court's caseload, we 
will consider the authorization of 
temporary judgeships. 

The subcommittee defines a tem- 
porary judgeship as one created for 
a minimum period of five years, 
which will lapse with the first va- 
cancy on the court thereafter. We 
are aware that there have been 
suggestions that the only valid 
temporary judgeship is one that 
lapses only with the retirement of 
the incumbent of that particular 
position. The latter definition 
makes it difficult for the subcom- 
mittee to use the temporary judge- 
ship concept for the particular 
function for which it is conceived 
to be useful. In our recent recom- 
mendations to the Court Adminis- 
tration Committee with respect to 
temporary judgeships, we speci- 
fied that the recommendations 
were based on the definition of a 
temporary judgeship lapsing with 
the first vacancy on the court after 
five years. We, of course, have no 
control over whether that defini- 
tion will be accepted by the Con- 
gress. The Judicial Conference, 

however, has accepted our defini- 

You mentioned that you con- 
sider the use of magistrates in 
formulating judgeship require- 
ments. Could you provide a little 
more detail on that? 

This factor is only now entering 
into our deliberations. For some 
time it has been the feeling of the 
Judicial Statistics Subcommit- 
tee — as well as of the Court Ad- 
ministration Committee, of which I 
am a member — that problems will 
be encountered if the ranks of Arti- 
cle III district judges continue to 
increase at the present rate. Many 
voices, within and without the ju- 
diciary, are emphasizing the valid- 
ity of this feeling. The great promi- 
nence that is given to alternative 
dispute resolution mechanisms, to 
the elimination of diversity juris- 
diction, and so forth leads us to the 
conclusion that this sentiment is 
shared by virtually the entire fed- 
eral judiciary. 

Therefore, it has seemed to us 
that one avenue that ought to be 
explored is the more effective, or 
greater, use of other personnel 
within the judicial structure. It is 
entirely possible that, sometime in 
the future, the federal practice will 
be such that magistrates will be 
handling most of the pretrial work 
in civil as well as in criminal cases, 
delivering to the Article III judge a 
pretrial order that the magistrate 

"A well-briefed request 
for judgeships at an early 
stage is the most helpful 
thing possible from any 


has formulated after supervision of 
discovery, in conference with 
counsel in a manner and form that 
has been approved by the judge. 
The district judge could then exam- 
ine the pretrial order to determine 
what further action, if any, on his 
See MOYE, page 6 


MOYE, from page 5 

part was necessary prior to trial 
and take such action or proceed to 
trial. This would be somewhat 
analogous to the procedure in 
which English barristers receive a 
brief from English solicitors and go 
to trial thereon. 

Judge Walter Hoffman's com- 
ments on page 4 of the December 
Third Branch on the lack of prob- 
lems encountered by visiting 
judges in trying cases already 
pretried in another district would 
seem to lend some validity to this 

Of course, magistrates would be 
under the supervision of the dis- 
trict judges at all times, and dis- 
covery supervised by such magis- 
trates, or other activities 
undertaken by them, would be in a 
form acceptable to the district 
judges. Such optimum utilization 
of magistrates would ultimately re- 
duce some of the pressure for the 
creation of additional Article III 
district judgeships — how much, of 
course, we do not know. 

But I emphasize that we are only 
in the very beginning of the proc- 
ess of analyzing the extent to 
which the workload needs of a par- 
ticular court can be handled 
through the more effective utiliza- 
tion of magistrates rather than the 
creation of additional Article III 
district judgeships. 

Some observers feel that the ju- 
diciary's effort to hold down the 
increase of judgeships is a com- 
mendable policy but that the judi- 
ciary may have been too hard on 
itself in recent years. How does 
your subcommittee balance the de- 
sire to confine growth against the 
rising demand for court services? 

The subcommittee considers 
each court on an individual basis, 
and it attempts to make sure that 
each court has an adequate Article 
III complement to serve its needs 
without creating an excess. We 
have no implements to give us this 
balance on a statistical, or other 

precise, basis. It winds up, as I see 
it, as the empirical judgment of the 
subcommittee as a whole. We have 
been made aware of no general 
feeling that the recommendations 
of the subcommittee are too parsi- 
monious across the board. We do 
occasionally get indications from 
particular courts of dissatisfaction 
with particular recommendations 

will be made in the future? 

Perhaps. At the present, we have 
no such intention. 

I'd like to explain why we did 
that with respect to diversity juris- 
diction. First, it is the position of 
the Judicial Conference that diver- 
sity jurisdiction ought to be 
eliminated. This results from rec- 
ommendations coming to the Con- 

"The ultimate basis of the subcommittee's final recom- 
mendation for each court ... is its best judgment ... of the 
entire amalgam of factors affecting that court." 

by the subcommittee. It is our hope 
that such courts will make their 
feelings known to us during the in- 
terval following the receipt of our 
tentative recommendations so that 
we have time to reconsider those 
courts' presentations prior to mak- 
ing our final recommendations. 

You talked about a number of 
factors, such as weighted case- 
loads, complexity, and so on. 
What about the presence of active 
senior judges? Is that taken into 

To an extent, it is necessarily 
taken into account in our judgment 
as to the effect to be given to the 
weighted caseload factor. Most of- 
ten we have found, however, that 
individual courts do not wish un- 
duly to expand the number of Arti- 
cle III judges where the caseload is 
being handled adequately by sen- 
ior judges. Generally, we are of the 
opinion that the active-judgeship 
complement of a district ought to 
be able to handle the workload of 
that district without great discom- 
fort. It is therefore in relatively few 
cases that the senior judge factor 
becomes decisive. 

In your last report to the Confer- 
ence, there was a discussion of the 
impact of diversity cases. You in- 
dicated that if these cases were 
eliminated, your request for 
judgeships would decrease by a 
large amount. Do you think it 
likely that similar annotations of 
other sources of judgeship needs 

ference from the Subcommittee on 
Federal Jurisdiction of the Court 
Administration Committee and the 
subsequent recommendations by 
the Court Administration Commit- 
tee. Therefore, we have not consid- 
ered, with respect to this item, that 
the Subcommittee on Judicial Sta- 
tistics was itself entering a new 
field. Rather, we are providing the 
statistical basis for the stated posi- 
tion of the Judicial Conference; we 
conceive that to be one of our func- 
tions. If similar situations arise in 
the future, we will approach it 
from the same viewpoint. But, I 
emphasize, it is not the statistics 
subcommittee that has adopted a 
position with respect to diversity 
jurisdiction. We are simply provid- 
ing statistics with respect to a 
stated position. 

Earlier, you noted that the fed- 
eral courts cannot continue to 
grow at their present pace. Is there 
a point beyond which the federal 
judiciary should not grow; is there 
a point at which alternative solu- 
tions must be implemented? 

There may be. We are not in a 
position now even to foresee or, 
certainly not, to forecast such a 
point. Generally, we know that in 
all organizations efficiency de- 
creases with growth. 

You talked about courts that 
might not agree with your deci- 
sions as to numbers of judgeships. 
How can courts help the subcom- 
See MOYE, page 8 



Eleventh Circuit fudge Johnson Receives Devitt Service Award 

Judge Frank M. Johnson, Jr., of 
he Eleventh Circuit has been 
lamed the recipient of the annual 
Devitt Distinguished Service to 
ustice Award. Judge Johnson was 
■ecognized for his "quiet courage" 
in pioneering "judicial intervention 
:o enforce constitutional guaran- 
:ees" and for "leading the peaceful 
udicial revolution in the states of 
:he former Confederacy." He was 
ilso cited for his competence as 
both a trial and an appellate judge 
ind for his work in improving judi- 
cal administration. 

The Devitt Award was estab- 

Judge Frank M. Johnson, jr. 

lished in 1982 by the West Pub- 
lishing Company "to bring public 
recognition to the contributions to 

justice made by Federal Judges and 
to herald their dedication and 
achievements." It is named for 
Judge Edward J. Devitt of the U.S. 
District Court for the District of 
Minnesota, who served on the se- 
lection committee along with Su- 
preme Court Justice Lewis F. 
Powell, Jr., and Chief Judge James 
R. Browning of the Ninth Circuit. 

Previous recipients were Judge 
Albert B. Maris (3rd Cir.) and 
Judge Walter E. Hoffman (E.D. 
Va.). Chief Justice Warren E. 
Burger was honored with a special 
award in 1983. ■ 

Librarian, Supreme Court of the 
United States. Salary from $50,000, 
depending upon prior experience 
and salary history. Responsible for 
administration of the Supreme 
Court Library, including supervi- 
sion of staff, management of collec- 
tions and automated information 
systems, budgeting, procurement, 
and space planning. Requires law 
degree, advanced degree in library 
science, and a minimum of six years 
of progressively responsible law li- 
brary experience; also requires prior 
supervisory experience and compe- 
tence with automated information 
systems. Strong interpersonal skills 
and budgetary experience are desir- 
able. To apply, send resume and 
standard form 171 by Jan. 31, 1985, 
to James A. Robbins, Personnel and 
Organizational Development Offi- 
cer, Supreme Court of the United 
States, Room 3, Washington, DC 

» » » 

Deputy Clerk, Supreme Court of 
the United States. Salary from 
$30,549 to $42,928. Assists in prepa- 
ration of Court's Order Lists and in 
forma pauperis case Conference Lists; 
processes emergency applications 
and drafts orders; corresponds and 
consults on court practice and pro- 

Positions Available 

cedure. Requires law degree, mem- 
bership in a state bar, and at least 
two years of experience in a court or 
a management position. Experience 
as a deputy clerk in an appellate 
court with supervisory experience 
and/or management training desir- 
able. To apply, send standard form 
171 by Jan. 25, 1985, to James A. 
Robbins, Personnel and Organiza- 
tional Development Officer, Su- 
preme Court of the United States, 
Room 3, Washington, DC 20543. 

Chief Deputy Clerk, U.S. District 
Court for the District of Connecti- 
cut (New Haven). Salary from 
$25,489 to $42,928. Requires bache- 
lor's degree in business or public 
administration, political science, 
criminal justice, law, or manage- 
ment. Also requires history of pro- 
gressively responsible administra- 
tive, professional investigative, or 
technical job assignments; prior 
court experience preferred. To ap- 
ply, send resume by Jan. 25, 1985, 
to Clerk, U.S. District Court, P.O. 
Box 1206, New Haven, CT 06505. 

Federal Public Defender, Middle 
District of Tennessee (Nashville). 

Salary of $59,760. Provides federal 
criminal defense services, adminis- 
ters an office, and supervises staff. 
Requires law degree and member- 
ship in a state bar. Significant fed- 
eral criminal trial experience, ability 
to administer an office effectively, 
reputation for integrity, and com- 
mitment to the representation of 
those unable to afford counsel are 
desirable. To apply, obtain applica- 
tion form from Billie Jo Hastings, 
Acting Clerk, U.S. District Court, 
800 U.S. Courthouse, Nashville, TN 
37203-3869. Completed applications 
must be received by Jan. 15, 1985. 

Assistant to the Circuit Execu- 
tive, District of Columbia Circuit. 

Salary from $25,366 to $36,152, de- 
pending on qualifications. Requires 
undergraduate degree and work ex- 
perience that clearly demonstrates 
administrative and managerial 
capabilities. Graduate degree in 
management, public administration, 
judicial administration, or law is 
highly desirable. To apply, send ap- 
plication by Feb. 1, 1985, to Charles 
E. Nelson, Circuit Executive, U.S. 
Court of Appeals, 4826 U.S. Court- 
house, Washington, DC 20001. 




MOYE, from page 6 

mittee — what can they do to aid 
you in your efforts? 

The best help that each court can 
give is to prepare and submit, as 
early as possible following our ini- 
tial request, a complete profile of 
the court — basically following our 
questionnaire — and to give the 
matter at that point the court's 
careful attention. That is the time 
when the court is in the best posi- 
tion to develop the factual basis for 
its request. While the subcommit- 
tee has access to the statistical 
information in the SARD, that divi- 
sion does not have all the informa- 
tion of a local or particular nature 
that may be important to our rec- 
ommendations. A well-briefed re- 
quest for judgeships at an early 
stage is the most helpful thing pos- 
sible from any court. 

Are you trying to move away 
from roving judgeships — a judge 
for more than one district? 

We are, and we have been quite 
successful. When the judiciary was 
smaller, I am sure that roving 
judgeships — judgeships crossing 
district lines — were a useful de- 
vice. There is no longer any single- 
judge district in the country, and 
even in those districts in which 
roving judgeships have existed in 
the past, there is no longer a need 
that cannot be met by the judges 
assigned to individual districts. 

Roving judgeships substantially 
skewed the statistical basis for de- 
termining judgeships. We found 
that it was difficult to allocate fil- 
ings on a per-judgeship basis 
where roving judgeships existed. 
When we did so it was on an arbi- 
trary 50/50 or other appropriate 
percentage basis, and, in many 
cases, we found that a roving 
judge might be a de facto full-time 
judge or almost full-time judge in a 
single district. Therefore, from the 
viewpoint of developing a rational 
statistical basis for additional 
judgeships, the subcommittee pre- 
fers to do so on an individual- 

district basis and has, therefore, in 
several cases, recommended the 
elimination of roving judgeships 
and the assignment of a roving 
judge to a particular district. 

There is sometimes a great deal 
of criticism about the creation of 
judgeships after the Judicial Con- 
ference finishes its recommenda- 
tions. Would you care to comment 
on that process? 

The subcommittee takes the po- 
sition, and, 1 believe, rightly, that 
that is not its affair and that it 
would be unwise for it to state any 
position with respect thereto. 
There is a separation between the 
Congress and the judiciary. Con- 
gress is the judgeship-creating 
agency and not the judiciary. And 
while, on a statistical basis, we 
may individually have some ques- 
tion with respect to certain situa- 
tions, such as those you describe, 
we have no position on them. 

You talked about the fact that 
roving judgeships sometimes tend 
to skew some of your statistical 
bases. Are there problems with the 
statistics that are collected? Do 
you hear any criticisms of them? 
Are changes needed? 

The most general criticism we 
hear is that the present weighted 
caseload table doesn't adequately 
reflect some particular type of case 
that may constitute a substantial 
part of a district's caseload. The 
1979 weighted caseload table is 
currently our best statistical device 
for evaluating the overall qualita- 
tive and comparative caseload of 
any court. The subcommittee is 
thoroughly aware, however, that 
the weighted caseload table is 
based upon a single survey in 1979 
by the Federal Judicial Center that 
encompassed only 100 district 
judges. That survey is used by us 
in preference to the previous one, 
which is now well over 10 years 
old. There have been some more 
recent analyses of case weights, 
which indicate that the 1979 table is 
generally reliable for the broad 
purposes for which we us.e it. 

When the subcommittee author- 
ized that survey in 1979, it was or ( 
the basis that the survey be so de- 
signed that should additional seg- 
ments of the judiciary be surveyed 
subsequently the results would be 
compatible. So far, our information 
from the Center has indicated that 
the weighted caseload table is suf- 
ficiently accurate for our purposes, 
and we have no desire unnecessar- 
ily to refine it because that neces- 
sarily means a substantial impinge- 
ment upon judgeship time. The 100 
judges who took part in the 1979 
survey were asked to keep accurate 
records of their time, by particular 
case, for a period of three months. 
That was a very substantial dedica- 
tion of judgeship time and we do 
not wish to repeat it until it be- 
comes more apparent that it is 


Is there anything else you would 
like to add? 

I think 1 pretty well covered 
what I had wanted to say. I have 
emphasized, and will do so again, 
that the recommendations by the 
subcommittee are not automatic, 
statistically derived crosslines fig- 
ures. We use statistics as a starting 
point to conserve the efforts of the 
subcommittee in the analysis of in- 
formation. We've done this over 
such a period of years that we are 
confident that we are pretty well in 
range when we start our consider- 
ation of a particular court. But fre- 
quently there have been occasions 
on which the subcommittee has 
been activated by a court's expres- 
sion or justification of a need not I 
apparent from the statistics them- 1 
selves. The careful attention of the 
court, particularly of the chief 
judge, during the period immedi- 
ately following the request from 
the subcommittee in the summer of 
even years — and the careful prepa- 
ration or documentation of a re- 
quest, if there be a request, for ad-/ 
ditional judgeships — would be oi 
the utmost assistance to the sub 
committee. ' 





Charles E. Wiggins, U.S. Circuit 
Judge, 9th Cir., Oct. 16 

Richard F. Suhrheinrich, U.S. Dis- 
trict Judge, E.D. Mich., Oct. 

James H. Jarvis II, U.S. District 
Judge, E.D. Tenn., Oct. 30 

Juan R. Torruella, U.S. Circuit 
Judge, 1st Cir., Nov. 1 

Charles R. Norgle, Sr., U.S. Dis- 
trict Judge, N.D. 111., Nov. 1 

Illana D. Rovner, U.S. District 
Judge, N.D. 111., Nov. 1 


Harold A. Baker, Chief Judge, CD. 

111., Nov. 27 
Harold M. Fong, Chief Judge, D. 

Hawaii, Nov. 30 



The Chief justice 
of the United States 

Judge Daniel M. Friedman 

United Slates Court of Appeals 
for the Federal Circuit 

Judge Cornelia C. Kennedy 

United Slates Court of Appeals 

for the Sixth Circuit 

Chief Judge Howard C. Bratton 

United Slates District Court 
District of New Mexico 

Judge A. David Mazzone 

Uriited Stales District Court 

District of Massachusetts 

Chief Judge Warren K. Urbom 

United States District Court 

District of Nebraska 

Judge Martin V. B. Bostetter, Jr. 

United States Bankruptcy Court 
Eastern District of Virginia 

William E. Foley, Director 

Administrative Office of the 
United States Courts 

Federal judicial Center 

A. Leo Levin, Director 
Charles W. Nihan, Deputy Director 

Owen M. Panner, Chief Judge, D. 

Or., Oct. 20 
Juan M. Perez-Gimenez, Chief 

Judge, D.P.R., Oct. 30 
Richard M. Bilby, Chief Judge, D. 

Ariz., Nov. 30 


Date of Truman M. Hobbs's eleva- 
tion to Chief Judge, M.D. 
Ala., is Oct. 18. 

Senior Status 

C. A. Muecke, U.S. District Judge, 
D. Ariz., Nov. 30 


J. Waldo Ackerman, Chief Judge, 
CD. 111., Nov. 23 

Mediation Procedure Used 
In W.D. Wash. Described 

The Center recently published 
Mediation in the Western District of 
Washington, which describes an 
innovation applied in the Western 
District of Washington for media- 
tion of selected civil cases. The re- 
port, written by Professor Karl 
Tegland of the University of Wash- 
ington School of Law, is the sec- 
ond in a collection entitled Innova- 
tions in the Courts: A Series on Court 

In an attempt to alleviate a 
growing backlog of cases, the U.S. 
district court and the local federal 
bar association in the Western Dis- 
trict of Washington jointly devel- 
oped a procedure by which judges 
may refer civil cases to attorneys 
who serve as mediators without 
compensation. This procedure is 
embodied in local civil rule 39.1. 

The report, based on interviews 
with judges, clerks of court, and 
attorneys, focuses on both the 
codified procedure and the manner 
in which the procedure operates. 

Copies of the report can be ob- 
tained by writing to the Center's 
Information Services Office, 1520 H 
St., N.W., Washington, DC 
20005. ■ 


The publications listed below may be of 
interest to The Third Branch readers. 
Only those preceded by a checkmark are 
available through the Center. When order- 
ing copies, please refer to the document's 
author and title or other description. Re- 
quests should be in writing, accompanied 
by a self-addressed, gummed mailing label, 
preferably franked (but do not send an en- 
velope), and addressed to Federal Judicial 
Center, Information Service, 1520 H 
Street, N.W., Washington, DC 20005. 

Atwood, Barbara Ann. "Domes- 
tic Relations in Federal Court: To- 
ward a Principled Exercise of Juris- 
diction." 35 Hastings Law Journal 
571 (1984). 

j^Bazelon, David. "The Insanity 
Defense: Symbol and Substance." 
Speech to the American Academy 
of Psychiatry and the Law, Nassau, 
Bahamas, Oct. 27, 1984. 

Burger, Warren E. "The Judici- 
ary: The Origins of Judicial Re- 
view." 54 National Forum 26 (1984). 

Goldberg, Arthur J. "Regulation 
of Hostile Tender Offers: A Dis- 
senting Review and Recommended 
Reforms." 43 Maryland Law Review 

Goleman, Daniel. "Studies of 
Children as Witnesses Find Sur- 
prising Accuracy." New York Times, 
Nov. 6, 1984, p. CI. 

Greene, Harold H. "AT&T Di- 
vestiture and Consumers." 5 Uni- 
versity of Bridgeport Law Review 251 

Heflin, Howell, and William B. 
Enright. "Should Lawyers Ques- 
tion Prospective Jurors?" 70 ABA 
Journal 14 (1984). 

Kaufman, Irving R. "Keeping 
Politics Out of the Court." New 
York Times Magazine, Dec. 9, 1984, 
p. 72. 

Markey, Howard T. "The Deli- 
cate Dichotomies of Judicial Eth- 
ics." 101 Federal Rules Decisions 373 

*^Torruella, Juan R. Remarks at 
induction into First Circuit judge- 
ship, San Juan, P.R., Nov. 1, 1984. 


ETHICS, from page 1 

him — and the legislation authoriz- 
ing it — violated the constitutional 
guarantee of an independent judi- 
ciary by placing disciplinary pow- 
ers in the hands of a court rather 
than Congress and violated his due 
process rights. He further claimed 
that the legislation was impermis- 
sibly vague. 

Judge Gerhard Gesell, rejecting 
that argument in Hastings v. Judi- 
cial Conference, No. 83-8850 
(D.D.C. July 25, 1984), first noted 
that "Congress was acutely aware 
of the need both to preserve funda- 

mental judicial independence and 
at the same time to enable the judi- 
ciary 'to put its own house in or- 
der' by providing tools to imple- 
ment the judiciary's own 
disciplinary procedures where nec- 
essary to assure judicial accounta- 
bility." He concluded that "the 
Act's disciplinary mechanism does 
nothing to encroach upon the es- 
sential independence of judges to 
decide cases." 

Judge Gesell also ruled that the 
legislation authorizing the judicial 
council's investigation of Judge 
Hastings was not impermissibly 

VIDEO, from page 2 

and leases; labor contracts; avoid- 
ing powers; chapter 11 amend- 
ments and repurchaser agree- 
ments; and consumer amend- 
ments. (The catalog number for the 
video program is VB-021, for the 
audio, AB-0245.) 

Either program can be borrowed 

in video or audio format from the 
Center's Media Services Unit, 1520 
H St., N.W., Washington, DC 
20005. Please include the appropri- 
ate catalog numbers in your re- 
quest, and if you wish to borrow a 
video program, specify either 
V2-inch VHS format or 3/4 -inch 
U-matic format. ■ 

vague and provided adequate due^j 
process rights for the subject of an 

Moreover, the district court 
denied Judge Hastings's claim re- 
garding the unconstitutionality of 
the Administrative Office's rejec- 
tion of his demand that his legal 
fees in the disciplinary proceedings 
be paid for by the government. 
Judge Gesell noted, however, that 
Judge Hastings could pursue a 
nonconstitutional claim for com- 
pensation and suggested that the 
legislative history of the act 
seemed to favor such payment. ■ 

1984 Court Management 
Report Issued 

The 1984 edition of Federal 
Court Management Statistics was 
published recently by the 
Administrative Office. It contains 
key data on the workload of fed- 
eral trial and appellate courts 
during the years ending June 30, 
1979, through June 30, 1984. 





Vol. 17 No. 1 January 1985 

The Federal Judicial Center 
Dolley Madison House 
1520 H Street, N.W. 
Washington, DC 20005 

Official Business 

Postage and 

fees paid 

United States 


l)c)cuiiicnt.s Division Law Library 
Uirivcrsity of Illinois College of Law 
S04 I'.ast PcnnsN'lvaiiia Avenue 

Cliamiinii'.n, !l, ' ()1820 









:hief Judge Aubrey E. Robinson, Jr. ''^^J//> 

I.e. District Court Has Unique Jurisdic^n, ^ 
lecord of Speedy Case Disposition t^^ ^/%^ 

Chief ]udge Aubrey E. Robinson, 
r., has been a judge of the U.S. Dis- 
rict Court for the District of Columbia 
n more than 18 years, and has been 
hief judge of this court for more than 


Judge Robinson, who was born and 
lised in New Jersey, graduated from 
'ornell University and Cornell Law 
chool. He accepted his first legal job 
1 Washington, D.C., after gradua- 
lon, and remained in private practice 
Here until his appointment to the Dis- 
'ict of Columbia Juvenile Court in 
965. He was named to the district 
mrt bench in 1966. 

Since taking office, Judge Robinson 
as served as a member of the Judicial 
onference's Ad Hoc Committee on 

Court Facilities and Design ii^l^^om- 
mittee on the Administration of the 
Criminal Law. He has also served as a 
Board member of the Federal Judicial 
Center and was chairman of the Amer- 
ican Bar Association's National Con- 
ference of Federal Trial Judges. 

In a wide-ranging interview with 
The Third Branch, Chief Judge 
Robinson comments on the atypical 
mix of cases in his district, warns that 
courts must not lose sight of their pri- 
mary goal — dispensing justice — and 
urges periodic paid sabbaticals for fed- 
eral judges. 

A 1982 Center study of the case- 
load of the U.S. Court of Appeals 

See ROBINSON, page 4 

enrollment Opens for Judges' Summer Program 

The Center will sponsor a pro- 
■am entitled "Statistics and Ex- 
ert Testimony in the Federal 
ourts" from June 9 to 14 at the 
niversity of Wisconsin Law 
:hool in Madison. Because of the 
vorable reactions of the judges 
ho attended a similar Center- 
)onsored seminar in Madison last 
immer, the program is being re- 
lated this year. 

The seminar will use a set of spe- 
ally fashioned cases in such areas 
i employment discrimination, 
ititrust, and securities regulation, 
mplemented by secondary read- 
gs and judicial opinions. In addi- 
on to plenary lecture sessions, 
ere will be small-group discus- 
ans between judges and faculty 

The seminar seeks to provide 
actical assistance to judges in 
•aling with — 

• Statistical and economic analy- 

ses offered to prove or disprove li- 
ability or damages. 

• Problems in the presentation of 
expert testimony, including diffi- 
culties created when experts are in- 
adequate to their task of explaining 
statistics, economic behavior, or 
other complex issues. 

• Application of the Federal 
Rules of Evidence in such cases. 

• The degree to which judges 
may step outside the adversary 
process to inform themselves of 
"legislative facts" underlying is- 
sues in a particular type of 

Judges wishing to attend should 
write to Kenneth C. Crawford, Di- 
rector of Continuing Education and 
Training, Federal Judicial Center, 
1520 H St., N.W., Washington, DC 
20005. Letters should be received 
by Feb. 21. 

This program is the only one for 
judges sponsored by the Center 
next summer. ■ 

William E. Foley 

Wm. Foley Retires, Caps 
Distinguished Career 
At Administrative Office 

William E. Foley has announced 
his retirement as director of the 
Administrative Office of the United 
States Courts, a position he has 
held since November 1977. Direc- 
tor Foley will remain in office until 
his successor is designated by the 
Supreme Court. 

Mr. Foley has worked with the 
federal courts pursuing improved 
judicial administration for more 
than 20 years. He joined the 
Administrative Office as deputy di- 
rector in 1964 and served in that 
capacity under the directorships of 
Warren Olney, Ernest Friesen, and 
Rowland Kirks. During Mr. Foley's 
tenure as director, the federal judi- 
ciary underwent unprecedented 
expansion: Since 1977 the two 
largest omnibus judgeship bills in 
the history of the nation created a 
See FOLEY, page 7 

Inside . . . 

Chief Justice Renews 

Proposals to Reduce 

Court's Caseload p. 3 

Bankruptcy Act 

Held Constitutional p. 3 

Justices Rehnquist, Blackmun 
Highlight TV Special .... p. 7 



New District Judges Gather at Seminar 

Twenty-five recently appointed judges attended the FJC's 
week-long seminar for new district judges in Washington 
last month. The program featured lectures from judges and 
professors on key topics in federal law, remarks by the Chief 
Justice, and a dinner at the Supreme Court. Among those 
absorbed in one of the lectures were Judges Walter S. Smith 
(W.D. Tex.) and liana Diamond Rovner (N.D. Ill), above 
left. Judges Peter K. Leisure (S.D. N.Y.) and Tom S. Lee 
(S.D. Miss.), above right, catch up on their seminar read- 
ing. At right, Professor Charles Abernathy of the 
Georgetown University School of Law illustrates a point 
during a lecture about employment discrimination law. 

Supreme Court Clerk Stevas Retiring at Term's End 


THE THIRD BRA NCH The chief Justice announced Jan. 

11 that Alexander L. Stevas, Clerk 

of the U.S. Supreme Court for the 
past four years, will retire at the 
end of the Court's current term. 

Mr. Stevas, a graduate of George 
Washington University Law 
School, was an assistant United 
States attorney in Washington, 
D.C., for 11 years, then clerk of 
court at the District of Columbia 
Court of Appeals and chief deputy 
clerk of the U.S. Court of Appeals 


Published monthly by the Administra- 
tive Office of the U.S. Courts and the 
Federal Judicial Center. Inquiries or 
changes of address should be directed 
to 1520 H Street, N.W., Washington, 
DC 20005. 


Alice L. O'Donnell, Director, Division 
of Inter-Judicial Affairs and Informa- 
tion Services, Federal Judicial Center. 
Joseph F. Spaniol, Jr., Deputy Director, 
Administrative Office of the U.S. Courts. 

for the District of Columbia Circuit 
He has received numerous awards 
for outstanding service, including 
President Ford's Management Im- 
provement Certificate and the 
American Judicature Society's 
Herbert Harley Award. 

In making the announcement 
Chief Justice Burger said, "Mr; 
Stevas's retirement marks the enc 
of a fine public career. We wisl 
him well for the years ahead." 

For vacancy notice, see p. 9. ' 


Chief Justice, in Annual Report, Reviews Ways to Ease Court's Caseload 

Chief Justice Burger, in his 1984 
Year-End Report on the Judiciary, 
called for renewed efforts to reduce 
the Supreme Court's caseload, and 
expanded on specific proposals to 
accomplish this. 

Two major proposals — both of 
which have been suggested by the 
Chief Justice in the past — were to 
create a temporary panel of federal 
judges to handle intercircuit con- 
flicts and to reduce the Court's 
docket by eliminating mandatory 
appellate jurisdiction. 

The Chief Justice urged that the 
temporary intercircuit tribunal be 
created for a five-year experimental 
period, during which time Con- 
gress and the Court would evalu- 
ate this special court. Pointing to 
the fact that the Supreme Court re- 
views many cases merely because 
there is a conflict on a question of 
law among the circuits, the Chief 



The publications listed below may be of 
interest to The Third Branch readers. 
Only those preceded by a checkmark are 
available through the Center. When order- 
ing copies, please refer to the document's 
author and title or other description. Re- 
quests should be in writing, accompanied 
by a self-addressed, gummed mailing label, 
preferably franked (but do not send an en- 
velope), and addressed to Federal Judicial 
Center, Information Service, 1520 H 
Street, N.W., Washington, DC 20005. 

Chaset, Alan J. "Implementing 
Attorney Admission Rules in the 
Federal Trial Courts: A Status Re- 
port on King Committee Activi- 
ties." 31 Federal Bar News and Jour- 
nal 429 (1984). 

Childress, Stephen Alan. 
"Standards of Review in Federal 
Civil Appeals: Fifth Circuit Illustra- 
tion and Analysis." 29 Loyola Law 
Review 851 (1983). 

Hellman, Arthur D. "The Su- 
preme Court's Second Thoughts: 
See SOURCE, page 11 

Justice proposed that the Supreme 
Court be authorized to refer these 
cases to the temporary court. The 
special panel could provide a uni- 
form federal resolution to issues 
when circuit conflicts arise. The 
Supreme Court could modify the 
panel's decisions, but otherwise its 
decisions would be binding on all 
federal courts. 

Bills to create such a temporary 
tribunal were introduced in both 
the House and the Senate in the 
98th Congress by Congressman 
Robert Kastenmeier and Senators 
Robert Dole, Strom Thurmond, 
and Howell Heflin, and were re- 
ported out of subcommittees in 
both houses. 

Referring to the Court's manda- 
tory appellate jurisdiction, the 
Chief Justice said that the elimina- 
tion of this jurisdiction would not 
necessarily foreclose Supreme 

Court review, since cases with 
questions meriting review could 
still reach the Court by the discre- 
tionary writ of certiorari. 

These two steps are needed, the 
Chief Justice said, because "Su- 
preme Court Justices must now 
work beyond any sound maximum 
limits" — issuing more than twice 
as many full opinions as they did 
as recently as 1953. As a conse- 
quence, he said, "the precious time 
for reflection so necessary to a 
court that decides cases with far- 
reaching consequences has been 
reduced to, and possibly below, an 
absolute minimum." 

In his year-end report. Chief Jus- 
tice Burger also called for increased 
salaries for federal judges at all lev- 
els. He said it was "unseemly [and] 
unjust" that judicial salaries had 
not kept pace with inflation or with 
See REPORT, page 8 

Judicial Appointments Under Bankruptcy Act Upheld 

The constitutionality of the judi- 
cial appointment provisions of the 
1984 bankruptcy reform act has 
been upheld by three district 

In one case, the subject of an in- 
voluntary bankruptcy petition 
challenged the constitutionality of 
the extension of the length of the 
terms of most bankruptcy judges. 
The Justice Department joined the 
suit on the plaintiff's side, ques- 
tioning the constitutionality of the 
Bankruptcy Amendments and Fed- 
eral Judgeship Act of 1984, and the 
Senate and House joined the de- 

The extension was constitution- 
ally permissible. Judge Robert H. 
Schnacke (N.D. Cal.) ruled, be- 
cause Congress did not do the ap- 
pointing, but merely changed "the 
scope and term of office," which it 
had the power to do. 

The ruling, in In Re Benny, Misc. 
No. C-84-120 (N.D. Cal. Nov. 29, 
1984), also held that the two weeks 

between the time Congress last ex- 
tended the bankruptcy judges' ten- 
ure and the time the bill 
authorizing appointments was 
signed did not create a situation in 
which all bankruptcy judges had to 
be treated as new appointments. 
The government and plaintiff 
Alexandra Benny filed notices of 

The same conclusion was 
reached in In Re Wasatch Factoring, 
Inc., Misc. No. B-0015 (D. Utah, 
Nov. 26, 1984), an oral opinion by 
Judge David K. Winder. 

In In Re Tom Carter Enterprises, 
Inc., No. SA-84-0624-RP (CD. 
Cal. Dec. 5, 1984), Judge Robert 
Takasugi found that the appoint- 
ment of incumbent bankruptcy 
judges was retroactive and not pro- 
vided for in the 1978 legislation. 
However, he ruled. Congress had 
as much power to make those ret- 
roactive appointments as it had to 
make the prospective ones. ■ 



ROBINSON, from page 1 

for the District of Columbia Cir- 
cuit described it as markedly dif- 
ferent from the case mix in other 
circuits. Does the same hold true 
for the district court for the Dis- 
trict of Columbia? 

Yes. Because we are located in 
the nation's capital, the seat of the 
federal government, we get more 
than our proportionate share of 
civil cases that involve complex 
and significant legal, economic, 
and social issues, many of which 
have national impact. The AT&T 
case is one example. Our multidis- 
trict cases involving swine flu, the 
Air Florida crash, the Korean Air 
Lines 007 case — all of these cases 
require a substantial exercise of ju- 
dicial effort, more so than the ordi- 
nary civil jury case. The complexity 
in our caseload is documented by 
the statistics kept by the Adminis- 
trative Office; we have the highest 
weighted caseload average of any 
district court in the nation, and it is 
not anticipated that this is going to 

Do the kinds of cases that come 
up on your docket present any 
special problems because of the 
divided jurisdiction in the District 
of Columbia? 

Not insofar as the civil cases are 
concerned. But they do present a 
difficult and special situation inso- 
far as the criminal cases are con- 
cerned because under the existing 
statutory arrangement in the Dis- 
trict of Columbia, federal crimes 
can be joined with local D.C. 
crimes in a single indictment. 
When that is done they are tried in 
our court. This gives rise to the 
problem of different evidentiary 
standards that frequently have to 
be applied. This also gives rise to 
procedural questions that require 
us to make a decision about what 
we will do and how we are going 
to do it. By and large, under the di- 
rection of our circuit court of ap- 
peals we have adapted the federal 
procedures, and, to the extent that 

we haven't been precluded from 
doing so by statute, those proce- 
dures are utilized in handling the 
local offenses that are joined. 

Did the 1970 act transferring 
some jurisdiction from the U.S. 
district court to the District of Co- 
lumbia Superior Court make quite 
a difference in your workload? 

Washington Law Reporter photo 

Chief Judge Aubrey E. Robinson, Jr. 

Yes, it's made a difference in the 
workload of all the judges on the 
court. Prior to the court reorgani- 
zation in 1970 our jurisdiction en- 
compassed all of the felony crimi- 
nal jurisdiction that existed in the 
District of Columbia, whether it 
arose out of a commission of local 
offenses or out of a commission of 
federal offenses. So we were basi- 
cally, for all intents and purposes, 
a criminal trial court for a number 
of years, and most of our judges 
spent the vast majority of their 
time trying criminal cases. 

Insofar as our civil jurisdiction is 
concerned, there was not a great 
impact because much of the civil 
jurisdiction that was separated out 
did not involve trials, but it cer- 
tainly did involve additional work, 
since we had probate and conser- 
vatorship jurisdiction. Prior to 1970 
we even had divorce jurisdiction in 
the District of Columbia. 

Are District of Columbia law- 
yers going to file more cases in the 

U.S. district court if they think 
they will get to trial faster than 
they will in the District of Colum- 
bia Superior Court? 

They will if they practice in both 
courts. There are many lawyers 
who limit their practices, not exclu- 
sively but almost, to one court or 
the other. I believe that there are a 
significant number of lawyers who 
do not feel comfortable practicing 
in the federal courts and they 
choose to practice in the local 
court. But if there are time con- 
straints and if they are looking for 
verdicts that they think the lower 
court will not give them, they will 
file here. Incidentally, they can file 
a lawsuit here for $10 and it costs 
$60 to file a civil suit in the supe- 
rior court. We have been trying for 
some time to get Congress to 
change the statute. Considering 
cheaper filing fees, a perception 
that they can get to trial more 
quickly, and the perception that 
because it is a federal court they 
may achieve a larger verdict if it is 
a jury case, lawyers who are com- 
fortable with the federal system, 
and who have had some experi- 
ence in practicing in this court, will 
file here. 

Your current disposition time 
for civil cases is half as much as 
the national average for all district 
courts. How did your court 
achieve such a record of effi- 

I think that the court is not solely 
responsible for that. If you look at 
other statistics you will see that our 
total average caseload per judge is 
significantly lower than a large 
number of other courts in the 
country. We do not carry a tremen- 
dous overall caseload, so our per- 
judge caseload enables our judges 
to spend more time with each of 
the cases for which they are re- 
sponsible. To the extent that a 
judge can spend time with a case, 
he or she can control discovery, 
and by controlling discovery the 
judge has a much better idea of 
See ROBINSON, page 5 


ROBINSON, from page 4 

what cases will in fact go to trial 
and what cases will be disposed of 
bv settlement. The judge also has 
the opportunity to deal with a large 
number of cases that are disposed 
of by motion, particularly motions 
for summary judgment. So dispo- 
sition time, in my judgment, is re- 
lated basically to two major factors: 
the overall caseload responsibility 

they are doing and they just go and 
go and they drive everyone around 
them. But that doesn't make for ef- 
ficiency necessarily. 

Is there any way to get the dis- 
position rate down? 

It is necessary for many reasons 
to translate our work into statistics. 
But no court system worth having 
and maintaining can be operated 
on the basis of statistics no matter 
how they are refined. Our job is to 

^'Because we are located in the nation's capital . . . we 
get more than our proportionate share of civil cases . . . 
which have national impact." 

of a judge and the ability of any 
particular judge to exercise strong 
control over his or her caseload 
even if that caseload is a large one. 

Are your judges at peak effi- 
ciency right now? 

Well, how do you measure the 
efficiency of a judge? Is it statistics 
reflecting the number of disposi- 
tions when dispositions can range 
all the way from the most minus- 
cule kind of matter to one that may 
have involved as many as several 
months of trial? I don't know how 
you would measure efficiency. It 
cannot be done objectively except 
as you look at a total court struc- 
ture. If, given our caseload, and 
given an incremental increase in 
that caseload every year, we were 
not reasonably keeping up with 
overall disposition, then you could 
say that as a unit, as a court, we 
were not operating efficiently. But 
even that would not mean that 
there might not be individual 
judges who were operating at peak 
efficiency. But if as you looked at 
the overall operation of the court 
you saw that in no area was it mak- 
ing any progress, then you could 
say that that court was operating 
inefficiently. Our judges are work- 
ing conscientiously, some of them 
are overworking themselves. We 
have judges who are workaholics 
and they just get immersed in what 

see that people who are in diffi- 
culty with the criminal law, or who 
have problems inter se, can have 
their problems resolved so that the 
bottom line resembles justice as 
closely as we perceive it. If to 
achieve that it means that we have 
to spend eight months, and if in 
spending those eight months we 
have refined it so that the net re- 
sult is justice, then we've done our 
job. This is not to say that there 
may not be a situation in which we 
can do it much more quickly. But 
the aim is not how quickly you can 
terminate cases, but how many you 
can run through the system, not 
how many you can take on. The 
aim is to see that the people we 
deal with feel that they have been 

Yes, all of us have different work 
habits and work styles and what 
will work for me will not necessa- 
rily work for "X." Some judges like 
to write out all of their own drafts. 
Other judges are comfortable with 
dictating, other judges are comfort- 
able with doing very little writing, 
spending more time in discussions 
with their law clerks, or more time 
in the trial of cases; what works for 
some does not necessarily work for 
others. There is no single pattern. 

There are 15 authorized judge- 
ships and there are five senior 
judges serving the U.S. District 
Court for the District of the Dis- 
trict of Columbia. Do you feel you 
have enough judge power? 

We do at our present rate of fil- 
ings, both civil and criminal, and 
that's primarily because all of our 
judges work and they work dili- 
gently. With the support that we 
get from our senior judges we are 
able to control our caseload. It's a 
good situation and we see no pres- 
ent necessity for additional judge- 
ships. In addition to our active and 
senior judges, one other factor that 
is of considerable help is the sup- 
port of our three magistrates. 
Those magistrates, especially in the 
criminal area, are very helpful in 
keeping the caseload current. As 
for the preliminary matters that are 
involved in criminal and civi) 

"Our job is to see that people . . . can have their prob- 
lems resolved so that the bottom line resembles justice as 
closely as we perceive it." 

fairly dealt with. Also, we have to 
remember that in doing this work 
we are not machines. There are 
peaks and valleys in our days and 
in our weeks and in our years. We 
cannot drive ourselves day in and 
day out for an extended period of 

There are some judges that just 
naturally work faster or slower 
than others. 

caseloads, magistrates are being 
utilized by most of our judges. 
They do most things to assist us in 
the discovery process and by acting 
as special masters when we find 
that we need them. They hold 
trials of cases where the parties 
consent to trial before a magistrate. 
We are not under any great pres- 
sure in terms of our overall 

See ROBINSON, page 6 



ROBINSON, from page 5 

Your court is unique in that all 
of your jurisdiction is in one geo- 
graphical area — one city. All your 
judges are in one courthouse. 
Does that make your work as a 
chief judge easier? 

Yes, I think it makes it easier. 
Because we are all physically lo- 
cated in one building it gives rise 
to the opportunity for much more 
personal communication and con- 
tact, which helps in administering a 

judge Robinson 

court. There is also a greater sense of 
collegiality, which one needs in or- 
der to have new ideas presented and 
discussed rationally to improve the 
functioning of the court. There is 
never a problem involved in travel. 

We have a lot of informal con- 
tact, and one tremendous advan- 
tage we have being located in one 
building is that we have an oppor- 
tunity to frequently have lunch to- 
gether, where we can discuss a va- 
riety of things. It's much easier to 
have regular meetings in the court- 
house, much easier to have com- 
mittee meetings, and much easier 
to involve the active litigating law- 
yers in the community. One of the 
things we are constantly concerned 
about is having bar reactions to 
some of the things we are doing, 
getting input from the practicing 

lawyers on ways we can improve. 
Having them in this relatively 
small geographical area is very 

The recently enacted Compre- 
hensive Crime Control Act of 1984 
makes sweeping changes in the 
criminal law area. What are your 
reactions to these changes? 

Well, Congress has spoken, and 
with the furor that has gone on for 
a number of years about 
sentencing disparity, it was an ex- 
pectation that Congress would co- 
dify a mandatory sentencing com- 
mission, despite efforts that many 
district courts had made toward 
sentencing conferences — despite 
the efforts of the Federal Judicial 
Center through its educational pro- 
grams, despite judicial conferences 
and circuit conferences around the 
country, and sentencing institutes. 
It was an idea whose time had 

I believe that when Congress 
makes the law it ill-behooves me to 
waste my time and energy arguing 
about legislation Congress has 
passed. I believe that we serve best 
when we try to understand the leg- 
islation and the background of the 
legislation, and attempt to make it 
as effective as possible. Congress 
has spoken: Sentencing guidelines 
will be established; they will be 
mandated. We have the same obli- 
gation as any other citizen affected 
by legislation, and that is to oper- 
ate within the bounds of that legis- 
lation until it is either appealed or 
declared to be unconstitutional, 
neither of which I expect to happen 
vis-a-vis the new Comprehensive 
Crime Control Act, at least insofar 
as the Sentencing Commission is 
concerned. As for the Sentencing 
Commission, it has a very difficult 
job to perform, but there will be 
the opportunity for input from a 
large number of people on what 
should and should not be included 
in the guidelines. 

Just as we made adjustments 
when the Bail Reform Act of 1966 
was enacted, we shall adjust to the 

requirements of the new bail re- 
form statute. The procedural, prac- 
tical, and constitutional problem of | 
preventive detention will be tac- 
kled in a deliberate and orderly 
fashion with the requirement of a 
complete record of our actions. We 
can anticipate exacting appellate 

As far as the Parole Commission 
is concerned, there again a policy 
decision has been made. The 
Parole Commission will have to 
operate, as I understand it, for a 
while because there are many peo- 
ple who are still incarcerated who 
will be subject to the statutes as 
they existed prior to the abolition. 
It will be phased out. 

It will have to function, obvi- 
ously, in the context of an entirely 
new arrangement. Its judgment 
may be affected by what it sees is 
on the books with respect to de- 
fendants over whom it will have no 
responsibility. Congress has spo- 
ken in no uncertain terms about 
the desirability of considering pun- 
ishment, and the desirability of 
reducing sentencing disparities. 

"One of the things we 
are constantly concerned 
about is . . . getting input 
from the practicing law- 
yers on ways we can 

and about the desirability of 
removing from the community 
people who are dangerous to 
themselves or others. 

Much has been said recently 
about the federal courts getting 
into too many social issues — 
abortion, religion, and so 
forth — issues some say shouldn't 
even be in the courts. Do you 
think some of these or other issues 
should not be resolved in the fed- 
eral court system? 

Absolutely not. It is quite true! 
that there are and have been out- 
standing state systems. There are 
See ROBINSON, page 10 


Justices Blackmun, Rehnquist, in TV Interview, Discuss Court's Ideology 

The Supreme Court is not "chip- 
ping away" at civil liberties as 
some critics claim, Justice William 
H. Rehnquist said recently in his 
first-ever television interview. 

Civil liberties claims are "essen- 
tially antimajoritarian" and should 
be "sustained when the Constitu- 
tion requires that they are sus- 
tained," Justice Rehnquist said. 
"But that certainly doesn't mean 
that every time a case comes to this 

court where the term 'civil liberties' 
is invoked, the court ought to 
unthinkingly decide" in the claim- 
ant's favor. 

Justice Rehnquist's remarks, as 
well as an interview with Justice 
Harry A. Blackmun, were taped in 
September and broadcast in late 
December as part of an hour-long 
program about the Court produced 
by ABC News. ABC said all the 
justices were invited to appear. 

FOLEY, from page 1 

total of 237 additional judgeships. 
Mr. Foley oversaw a number of key 
improvements, including the es- 
tablishment of pretrial services 
agencies and the creation of a new 
unit within the AO to increase and 
enhance the level of courthouse 

His term also included the intro- 
duction and eventual widespread 
use of computer and word- 
processing equipment in court of- 
fices, the creation of a federal court 
library system with a special library 
unit in the AO, the development of 
a design guide for the construction 
of court facilities, and the creation of 
the first comprehensive schedule for 
the disposition of court records. 

A native of Danbury, Conn., Mr. 
Foley holds four degrees (A.B., 
LL.B., A.M., and Ph.D.), all from 
Harvard University. In 1940, he 
joined the Department of Justice, 
leaving two years later for service 
during World War II as a lieutenant 
:ommander in the Navy. He had 
our years of active duty, eventu- 
Uly retiring from the Naval Re- 
serve in 1968 with the rank of 

Mr. Foley returned to Justice in 
1946 as part of the War Frauds 
Jnit, trying cases in the Southern 
district of New York, and was des- 
gnated chief of the Internal Secu- 
ity and Foreign Agents Registra- 
ion Section, Criminal Division, in 

1948. His 20-year career at Justice 
included appointments as execu- 
tive assistant to the assistant attor- 
ney general. Internal Security Divi- 
sion (1954-1958), and deputy 
assistant attorney general. Crimi- 
nal Division (1958-1964). 

Director Foley served as secre- 
tary to the Committee on Rules of 
Practice and Procedure of the Judi- 
cial Conference from 1965 to 1977, 
and has been a member of the 
Board of the Federal Judicial Center 
and the Board of Certification. 

Chief Justice Warren E. Burger 
noted "the many contributions [Bill 
Foley] has made to the federal 
courts," and added: "His strong 
leadership will be missed." (See 
The Third Branch, January 1985.) 

Calling him "an extraordinarily 
accomplished public servant, as 
well as a friend," Senior Judge 
Elmo Hunter, chairman of the Judi- 
cial Conference's Committee on 
Court Administration, stated that 
"Bill Foley's finest traits are his 
dedication to his job and his total 
fairness. He is not only highly edu- 
cated, but extremely bright." 

Chief Judge Charles Clark, chair- 
man of the Judicial Conference 
Committee on the Budget, noted 
that "being the director of the 
Administrative Office of the United 
States Courts is a most difficult 
job. He is always between the rigid 
strictures of congressional enact- 
ments and judicial conference di- 
rectives on the one side and the in- 

justices Blackmun and Rehnquist 
agreed that the Supreme Court 
moves in cycles. Justice Blackmun 
predicted some "pendulum swing" 
as the Court's justices are replaced 
over the next several years and 
voiced hope that the shift will be 
gradual because "abrupt changes 
in legal philosophy would be hard 
on the nation." 

Justice Rehnquist called change 
on the Court "a cyclical thing." ■ 

sistent demands of over 920 
independent, life-tenured federal 
judges on the other. 

"During more than 20 years of 
service as deputy director and di- 
rector. Bill Foley has done this 
grinding job with uncommon dedi- 
cation, equanimity, and common 
sense," Chief Judge Clark said. 
"His retirement marks a time when 
everyone in the judiciary should 
recognize our good fortune in hav- 
ing had his steady hand at the 
tiller. I wish him Godspeed." 

A. Leo Levin, director of the 
Federal Judicial Center, praised 
Mr. Foley's "rare combination of 
wisdom, common sense and 
unstinting devotion to the federal 
judicial system. Under his leader- 
ship our two organizations worked 
more closely together than ever be- 
fore in the effort to serve the courts 
more effectively." ■ 


Feb. 1-2 Judicial Conference 
Committee on the Budget 

Feb. 3-6 Sentencing Institute for 
the Eighth and Tenth 

Feb. 4-6 Civil Case Management 

Feb. 20-22 Seminar for Bank- 
ruptcy Judges 

Feb. 27-Mar. 1 Seminar for Mag- 
istrates of the Ninth and 
Tenth Circuits 



REPORT, from page 3 

increases for federal employees 
generally; and the report footnoted 
a reference to Article 111 of the Con- 
stitution, which guarantees that 
salaries of federal judges "shall not 
be diminished during their Contin- 
uance in Office." 

To bolster his argument for in- 
creased judicial pay. Chief Justice 
Burger noted that most law clerks 
to the justices earn more after 10 
years' practice than the $100,600 
the justices receive. He said that 
more than 40 federal judges have 
resigned in the last 15 years, "most 
of them because of inadequate 

Also in the year-end report, the 
Chief Justice — 

• Urged elimination of diversity 

• Strongly urged Congress not 
to create a statutory scheme of jury 
selection by attorneys in the fed- 
eral trial courts, and thus repeat 
the "disastrous experience" of 
some state courts. 

• Voiced renewed support for 
the concept of "factories with 
fences," which would afford prison 
inmates meaningful work while in 
state and federal prisons. The pro- 
gram would keep the inmates 
occupied, provide them with mar- 
ketable skills upon release, and 
help pay part of the high costs of 

• Encouraged the press to take 
note of instances in which attor- 
neys or litigants are sanctioned for 
filing frivolous suits or for abuse of 
pretrial discovery. 

• Called for modification of the 
congressional guidelines for judi- 
cial appointments to the new 
Sentencing Commission, to allow 
appointment of senior judges and 
to provide for temporary replace- 
ments for active judges who are 

• Asked for the creatio^n of a 
three-branch federal courts study 
commission to inquire about and 
report on the future needs of the 

federal court system. 

• Called upon the federal judici- 
ary to continue efforts to save 
money through, among other 
things, efficient jury-management 
procedures. He urged Congress to 
authorize the consolidation of the 
headquarters of the Administrative 
Office of the U.S. Courts and the 
Federal Judicial Center into one 
building. Presently the AO and the 
FJC are housed in seven different 
sites in the District of Columbia 
and Maryland, the rental expense 
of which would amortize the cost 
of a new building. 

The Chief Justice also proposed 
the appointment of a tenth justice 
who, as "Associate Justice for Ad- 
ministration," would assist with 
administrative matters but have no 
judicial duties. He explained this 
proposal in an interview published 
in the January 1985 issue of the 
American Bar Association journal. In 
that interview, the Chief Justice 
noted that, because of the growing 
number of judicial and administra- 
tive duties, he is compelled to 
work an average of 80 hours per 
week. He envisions the tenth asso- 

ciate justice as strictly a non- 
judicial officer who would coor- 
dinate all the functions of the Chief 
Justice with the Administrative Of- 
fice, the Center, and the Judicial 
Conference of the United States. 

The "administrative justice" 
would be appointed by the Chief 
Justice for a five-year term and 
would be a district or circuit judge 
"with some talent and liking for 
administrative matters." ■ 

Use of Jurors Praised 

Following Judicial Conference 
praise for district judges' im- 
provements in juror utihzation, 
the Chief Justice lauded those 
steps in his year-end report. His 
assessment of the increase in 
juror-use efficiency followed 
comments from the Conference 
last year hailing efforts to reduce 
the number of jurors needed and 
the time jurors await assign- 
ments. Efficient use of jurors was 
also praised by legislators at 
budget hearings at which Chief 
Judge Charles C. Clark, who 
heads the Conference's Commit- 
tee on the Budget, testified. 

FJC Report Examines Efforts to Set Guidelines 
For Court-Awarded Attorney Fees Before Trial 

The Center recently published 
Judicial Regulation of Attorneys' Fees: 
Beginning the Process at Pretrial, by 
Thomas E. Willging of the Center's 
Research Division. The report deals 
with an effort to control the cost of 
litigation by defining the court's 
attorney-fee-award standards at 
the commencement of the litiga- 
tion. It features the results of a sur- 
vey of lawyers' reactions to Judge 
John F. Grady's innovative pretrial 
order in the 1983 Continental Illinois 
Securities Litigation. 

This order, designed to prevent 
fee abuses by plaintiffs' attorneys 
in class actions, sets forth specific 
guidelines for reviewing fee peti- 
tions. Issues covered in the order 
include compensation for confer- 

ring, duplication of effort, rates of 
compensation, limits on services, 
and forms of time records. 

The 39 lawyers surveyed, repre- 
senting six categories of practice, 
identified several innovative fea- 
tures of the order and applauded 
its concept, but suggested certain 
improvements. They also called for 
a more flexible approach to reduc- 
ing attorneys' fees without sacrific- 
ing the quality of or access to 

Copies of this report can be ob- 
tained by writing to the Center's 
Information Services Office, 1520 H 
St., N.W., Washington, DC 20005. 
Enclose a self-addressed, gummed 
mailing label, preferably franked 
(but do not send an envelope). ■ 


Parties Hundreds of Miles Apart Linked Electronically in Courtroom 


An innovative procedure 
brought a bankruptcy petitioner 
into a Virginia courtroom electron- 
ically last month, even though he 
was actually hundreds of miles 

The unusual hearing involved 
Edwin P. Wilson, the former CIA 
agent jailed for gunrunning and at- 
tempted murder. Wilson is in a 
maximum-security prison in 
Marion, 111., and transporting him 

to the hearing at the bankruptcy 
court in Alexandria, Va., would 
have been expensive and posed se- 
curity problems. Bankruptcy peti- 
tioner Wilson appeared via satellite 
on two wide-screen video 

Wilson's presence was required 
at a preliminary hearing, during 
which creditors sought information 
about his assets. Wilson had filed 
for bankruptcy protection to keep 

Positions Available 

Clerk of Court, Supreme Court of 
the United States. Salary from 
$61,296. Responsible for the man- 
agement of the clerk's office, in- 
cluding interpreting Rules of Court, 
advising counsel on procedural mat- 
ters, supervising office personnel, 
preparing calendars, and managing 
automated docketing systems. Re- 
quires law degree and a minimum 
of 10 years' experience in a legal en- 
vironment, at least 5 years of which 
included substantial managerial ex- 
perience in a court system. General 
knowledge of appellate courts and 
computer technology desirable. To 
apply, send standard form 171 by 
Mar. 8 to Betsy Saxon, Assistant 
Personnel Officer, Supreme Court 
of the United States, Room 3, Wash- 
ington, DC 20543. 

Senior Staff Attorney, Fourth 
Circuit. Responsible for 10 attor- 
neys and 4 other employees who re- 
view substantive motions and pro 
se cases and who review cases for 
suitability for disposition without 
oral argument. Applicant must have 
a law degree, be admitted to the 
bar, and have 5 years' experience in 
law practice, legal research, legal 
administration, or legal education. 
Salary from $44,430 to $67,940. To 
apply, send resume and writing 
sample by Mar. 1 to John M. 
Greacen, Clerk, U.S. Court of Ap- 
peals, Tenth and Main Streets, 
Richmond, VA 23219. 

Clerk of Court, U.S. District 
Court for the District of Arizona 
(Tucson). Responsible for managing 
the administrative duties of the 
clerk's office. Applicant must have 
10 years of administrative experi- 
ence, at least 3 of them in a position 
of substantial management respon- 
sibility. An undergraduate degree 
may be substituted for 3 years' ex- 
perience, a law degree for another 3 
years' experience, and any post- 
graduate work in public, business, 
or judicial administration for one 
year's experience. To apply, send 
resume by Feb. 28 to Chief Judge 
Richard M. Bilby, U.S. District 
Court, Room 415, 44 East Broadway, 
Tucson, AZ 85701. 

Magistrate, U.S. District Court 
for the Southern District of New 
York (New York City). Salary 
$68,400. For a term of eight years, 
subject to renewal. Applicants must 
have practiced law for a period of at 
least 5 years (with some substitutes 
authorized), be less than 70 years 
old, and not be related to a judge of 
this district court. A merit selection 
panel will review all applicants and 
recommend to the judges of the 
court in confidence the five persons 
whom it considers best qualified. 
Candidates should submit a letter 
and detailed resume by Feb. 15 to: 
Judge Robert L. Carter, U.S. Court- 
house, Room 1901, 40 Centre St., 
New York, NY 10007. 

creditors from seizing, among 
other things, land he owns in Vir- 

The problems his movement and 
presence would have posed 
prompted U.S. Trustee William 
White to suggest the telecon- 
ference. Mr. White said he had 
kept use of such a procedure "in 
the back of my mind" since Chief 
Justice Burger proposed wider use 
of teleconferences to save time and 

Mr. White is trustee in the juris- 
diction encompassing the District 
of Columbia and the Eastern Dis- 
trict of Virginia — one of 10 pilot 
programs in 18 district courts. 

He had discussed the concept 
with the four bankruptcy judges in 
his jurisdiction — Judges Martin 
V.B. Bostetter, Jr., Blackwell N. 
Shelley, and Hal J. Bonney, Jr. (all 
E.D. Va.) and George F. Bason, Jr. 
(D.D.C.)— and all of them ap- 
proved. Bankruptcy Judge Bostet- 
ter approved the specifics of 
Wilson's appearance. 

More than 50 attorneys and spec- 
tators attended the hearing, Mr. 
White said, and none of them 
voiced any opposition to the un- 
usual arrangement. 

Mr. White, declaring that "the 
electronic age is here," said, 
"We're going to do this more of- 
ten. You can save a great deal of 
money, [because] your real ex- 
pense is all the running around." 
His sentiments were echoed by Mi- 
chael M. Sheppard, clerk of the 
Eastern District of Virginia Bank- 
ruptcy Court. Two more cases 
utilizing electronic conferences 
with hospitalized participants are 
planned for the near future. 

One addition that may be made 
in the future is to put document- 
transmitting machines at both ends 
of the electronic hookup. 

The video hookup for the Wilson 
hearing was arranged by the Jus- 
tice Department, which is charged 
with protecting him. 

10^ 1-,-hr -.TT-r^TT-^ 


ROBINSON, from page 6 

state judicial systems that can deal 
very effectively with these issues. 
The issues you posed obviously are 
the ones that concern the whole 
country. They are not local in any 
territorial sense. I don't know 
where else they would be resolved 
if they are to be resolved at all in 
the context of the court system. 
Now obviously they can't be dealt 
with exclusively in the executive 
branch because of the limitations of 
the executive's authority, even 
working through established 
agencies. Legislating does not ob- 
viate the necessity to resolve mat- 
ters in the court system because 
there is no legislation ever passed 
by Congress that is not challenged 
in some place in a court system. 
So, in that sense I don't know 
where else any of these issues 
could arise. But, more fundamen- 
tally, these issues don't arise in the 
abstract; they all arise in the con- 
text of individual, statutory, con- 
stitutional rights, and it is the re- 
sponsibility of the federal court to 
be the basic protector of the indi- 
vidual constitutional rights of the 

"No court system worth 
having and maintaining 
can be operated on the 
basis of statistics. . . /' 

Circuit judicial conferences and 
circuit judicial councils should con- 
tinue efforts to provide reasoned 
discourse between district and ap- 
pellate judges. Increased opportu- 
nities for informed personal con- 
tacts will ameliorate many of the 
tensions between judges in the 
federal system and between federal 
and state judges. Artificial barriers 
must be eliminated. The respect 
that the average citizen in this 

citizens of this country. There is no 
question in my mind that this liti- 
gation is where it belongs, and 
that's in the federal system. 

Sometimes friction develops be- 
tween trial and appellate court 
judges; I'm thinking of state as 
well as federal judges. It is based 
on reversals, intellectual and phil- 
osophical disagreements, dispar- 
ities in salaries, on the fact that 
some don't have a voice in matters 
on council levels. Do you have any 
suggestions for ameliorating some 
of these situations? 

the sabbatical at all. 1 don't think 
there should be any requirement 
that you do anything. I have 
enough confiden .e in the integrity 
of the people to be sure they would 
avail themselves of the opportunity 
to do the kinds of things they feel 
they should do. If it be travel they 
felt they needed, they would 
travel; or if it be to study, write, or 
teach, they would do that. These 
are the kinds of people, by and 

''To the extent that a judge can spend time with a case, 
he can control discovery." 

country has for the law and for ju- 
dicial office should not be deni- 
grated by the inability of judges to 
work with each other, no matter on 
which court they sit. 

If you could make one change in 
the way the federal judiciary oper- 
ates today, procedural or statutory, 
what would it be? 

If 1 had one opportunity, high on 
my list would be the establishment 
of sabbatical leave for every federal 

What time limit would you set? 
One should be eligible for a sab- 
batical after 10 years on the bench. 
As for the length of the sabbatical, 
1 would think no less than 6 
months, ideally 12 months. 

After being immersed in the 
business of judging, year in and 
year out, 1 believe one needs to 
have an opportunity to step back 
and think— to get some perspec- 
tive. A judge should have the op- 
portunity to explore some areas of 
the law in depth — those areas that 
he or she may not previously have 
had the opportunity to explore. We 
need to think about what's coming 
down the line, to determine 
whether we want to spend the rest 
of our life on the bench. 

Do you believe that opportuni- 
ties to travel and meet other 
judges in other countries would 

I would put no restrictions on 

large, who have been appointed to 
the bench. There's a sense of dedi- 
cation that one has, and it stays; 
there's a sense of purpose. There 
need be no restrictions placed at 
all, just the opportunity. 

At least one state, Oregon, does 
that. The drawback is that their 
pay stops. They can go off the 
bench for a year, they can go seek 
other endeavors, or they can just 

They can't rest very well if they 
don't have any money to rest 

That's exactly it. So they teach, 
most of them. 

I think that that is an undesirable 
situation. What I'm talking about, 
of course, is the epitome; there is 
little possibility of the acceptance 
of the suggestion that a judge be 
paid for doing what he or she 
wants to do for a year. There may 
be some who can afford the 
Oregon plan; there may be some 
wealthy enough before they came 
on the bench who can afford to do 
what they want to do and not even 
have to teach. But we are in a posi- 
tion where, even if we can afford 
to do it, we can't. I would like 
judges to have the opportunity, 
and that would be a choice that 
each judge would have to make. 

Do you find that your adminis- 
trative work as chief judge of a big 
See ROBINSON, page 11 1 

ROBINSON, from page 10 

metropolitan area court is very 
demanding — almost too de- 

No, I don't find it's too de- 
manding. It is demanding, but I 
happen to enjoy it. I enjoy it because 
there are things that I have gotten 
interested in through my experience 
at the Federal Judicial Center, my 
contact with other Judicial Confer- 
ence judges, service on the Judicial 
Conference committees, and work- 
ing in the Judicial Administration 
Division of the American Bar Associ- 
ation. They are areas of concern that 
I have developed. I'd like to see 
what I can do about improving the 
way our court operates. The other 
reason that I say it is not overbur- 
dening is that I have excellent coop- 
eration from the judges on our 
court. I do not have to participate ac- 
tively in the draw of new cases. I can 
limit myself. I have charge of the 
grand jury, for example. I have been 
the backstop for the bankruptcy 
judge because we only have one 
bankruptcy judge in this jurisdic- 
tion. I've taken special cases that I 
thought would relieve other judges 
in the court, and I have picked up 
miscellaneous things to complement 
the time I spend doing 

Do you delegate some tasks? 

Oh, yes, I am supported by ex- 
cellent staff. But if I begin to dele- 
gate to other judges, then I've just 
drawn other judges away from 
their responsibilities to their 
casework. The fact of the matter is 
there are many of us who are not 
interested in administration and 
aren't worth a nickel when it 
comes to administering anything. 
There are others who administer 
extremely well. This court was at 
one time administered by Chief 
Judge George Hart. He loved it and 
he was an excellent administrator. 
Courts need good administrators, 
but under the system they may 
have one and they may not, since 

one gets to be chief judge by 

Have you made changes here 
that you are very pleased with? 

Yes. Well, some of the things we 
are still in the process of changing. 

"One should be eligi- 
ble for a sabbatical after 
10 years on the bench/' 

But one has to do with the grand 
juries. We have reduced the num- 
ber of our grand juries from 14 to 
6. We have greatly improved the 
utilization of the grand jurors' 
time. We have a much better rela- 
tionship with the prosecutors in 
the utilization of grand juries. We 
have been able to involve staff in 
the whole court process and de- 
velop good rapport with court per- 
sonnel. We are very fortunate that 
the clerk of our court, James 
Davey, is very well trained, very 
experienced, works well with us, 
and is considered one of the best 
clerks in this country. And when 
you can rely on that kind of per- 
son, who himself has developed a 
staff upon which he can rely, it is 
extremely helpful. The same is true 
for our probation office. We have a 
very fine probation office, super- 
vised by Chief Probation Officer 
William H. Webb, and we are 
proud of it. 

Do you have two law clerks. 

Yes, I do. 

Could you use three? 

I think not. I couldn't use three. 



and two is presenting problems for 
many judges because of space limi- 
tation in the building. 

One of the greatest criticisms of 
federal judges, especially by 
judges from abroad, is plea bar- 
gaining. What's your answer to 
this criticism? 

Plea bargaining is necessary. 
Plea bargaining is just not 

Judges don't have anything to do 
with plea bargaining, except in one 
instance, and that is if they get in- 
volved actively under rule 11 in ap- 
proving not only the plea but the 
sentence. Judges have nothing to 
do with, nor control over, what 
goes on between the prosecutor 
and the defense lawyer. So it's not 
a judicial problem. Plea bargaining 
is the problem of the executive 
branch of government. It arises be- 
cause prosecutors overcharge and 
overindict. If they run the grand 
juries and grind out indictment af- 
ter indictment, somebody has to 
try them. Until the public is willing 
to significantly increase court facil- 
ities and judicial personnel, there 
have to be other solutions, and 
plea bargaining is one of them. 
Any lawyer worth his salt as a 
criminal defender knows that all he 
has to do is ask for a jury trial and 
it will be granted. It is presently 
impossible in many courts to have 
all of the defendants tried who are 
entitled constitutionally to a jury 
trial. The average plea bargain is 
arrived at when the defendant has 
been overcharged and the lawyer 
knows that the case will never get 
to trial. ■ 

SOURCE, from page 3 

Remands for Reconsideration and 
Denials of Review in Cases Held 
for Plenary Decisions." 11 Hastings 
Constitutional Law Quarterly 5 

Levin, A. Leo and Susan Leeson, 
"Issue Preclusion Against the 
United States Government." 70 
Iowa Law Review 113 (1984). 

Miller, Arthur R. "The Adver- 
sary System: Dinosaur or 
Phoenix." 69 Minnesota Law Review 
1 (1984). 

Rodino, Peter W. "The Proposed 
Balanced Budget/Tax Limitation 
Constitutional Amendment: No 
Balance, No Limits." 10 Hastings 
Constitutional Law Quarterly 785 





FJC Publishes Annotated Synopsis of 1984 Crime Control Legislation 

The Center recently published 
The Crime Control and Fine Enforce- 
ment Acts of 1984: A Synopsis, by 
Anthony Partridge of the Center's 
Research Division. The report was 
distributed within the federal judi- 
ciary as part of the Jan. 17 video 
seminar on the Comprehensive 
Crime Control Act of 1984. 

The report, a 63-page summary 
in outline form, details the stat- 
utes' various provisions, with an- 
notated citations and page-by-page 
specifications of the effective dates 
of the provisions under analysis. It 
reviews prospective changes in 
federal sentencing procedures and 

catalogs the numerous changes to 
the substantive criminal law. Spe- 
cial emphasis is placed on provi- 
sions dealing with bail and youth- 
ful offenders, on changes affecting 
fines, forfeitures, and special as- 
sessments, and on changes regard- 
ing offenders with a mental disease 
or defect. A subject matter index to 
the statutes is included. 

The report has been sent to 
judges, magistrates, probation and 
pretrial services officers, federal 
and community defenders, and 
clerks of court. Additional copies 
are available by sending a self- 
addressed mailing label, preferably 

franked (but not an envelope), to 
the Center's Information Services 
Office, 1520 H St., N.W., Washing- 
ton, DC 20005. ■ 

Judge Mansfield Named 
To Special Division 

Senior Judge Walter Mansfield 
(2nd Cir.) has been named to a 
vacancy on the special division of 
the Court of Appeals for the Dis- 
trict of Columbia Circuit, which 
appoints independent counsel — 
formerly known as special prose- 
cutors — pursuant to 28 U.S.C. 




Vol. 17 No. 2 February 1985 

The Federal Judicial Center 
Dolley Madison House 
1520 H Street, N.W. 
Washington, D.C. 20005 

Official Business 




Postage and 

fees paid 

United States 


l^DCiiments Division Law Library 
University of lUitnois College of Law 
M)4 lluiat I'unitnylVMUju AVfc'IVUP 
Champaign, IL 01820 

U.S. GOVERNMENT PRINTING OFFI»^c i^o^-jou-wy-uu; 





MARCH 1985 

udge Bumita She I ton Matthews 

.eader of Women's Rights Movement Recalls 

Suffrage Fight and Appointment to Bench 

Judge Bumita Shelton Matthews, an 
ypointee of Presidetit Harry S Truman 
! 1949, was the first woman district 
lurt judge in the federal court system. 
After serving on the trial court for 19 
'ars, she took senior status in 1968 and 
t by designation on the Court of Ap- 
'als for the District of Columbia Cir- 
tit, as well as on the Court of Customs 
id Patent Appeals. 

In the following interview, in her 
ambers at the U.S. courthouse. Judge 
'atthews recounts many efforts by her- 
If and others to bring about women's 
^hts in this country, including the 
^ht to vote. When Judge Matthews was 
private practice, no opponent was too 
rmidable, including Chief Justice 
illiam Howard Taft, who wanted prop- 
ty owned by the National Woman's 
\rty so that the Supreme Court build- 
? could be erected there. Although she 
>t the battle to prevent the property's 
ndemnation, she received the largest 
mrd in that condemnation proceeding. 
Currently, the Judge is working on 
? distribution of her papers, most of 

Judge Bumita S. Matthews 

1973 p}wio^raph 

which will go to the Arthur and 
Elizabeth Schlesinger Library on the His- 
tory of Women in America at Radcliffe 
College in Cambridge, Mass. 

When did you first come to Wash- 
ington, Judge? 

I came to Washington when 

World War I started and when 

Woodrow Wilson was president. I 

wanted to study law and there just 

See MATTHEWS, page 6 

Prison Factories May Turn Ideas Into Products 

Inmates may get high-tech manu- 
facturing jobs under a program de- 
signed to encourage inventors and 
have prison factories make their 

Unicor, the trade name of Federal 
Prison Industries, operates 75 manu- 
facturing plants at 47 federal facilities. 
The factories' output ranges from fur- 
niture to circuit boards for various 
government agencies. 

Unicor executives are seeking new 
products whose manufacture is labor 
intensive. The prime designers of 
such products are inventors seeking 
government assistance to finance 

The Energy Department's Energy- 
Related Invention Program and the 
Commerce Department's Office of 
Small Business Technology both as- 
sist such inventors, and both refer to 
the prison agency those inventors 
with products that seem to meet 
Unicor's standards. 

The advantage to inventors who 
arrange for production by Unicor is 
that they do not need to acquire or in- 
vest capital in production facihties. 
Also, because a market among federal 
agencies is assured, there is not a 
long wait for royalties. 

Chief Justice Renews 

Proposal for National 

Intercircuit Panel 

Declaring that "we passed any 
sensible limit on what the Supreme 
Court should be asked to do . . . 
years ago," Chief Justice Warren E. 
Burger has renewed his call for a na- 
tional appellate panel of circuit court 
judges, chiefly to resolve circuit 

The new panel the Chief Justice 
envisions to cut the Supreme 
Court's workload would be tempo- 
rary and experimental, functioning 
as an auxiliary to the Supreme Court 
and as a composite en banc panel of 
all the circuits, designed to resolve 
intercircuit conflicts, chiefly on statu- 
tory interpretation. 

It would be composed of judges 
drawn from Courts of Appeals, both 
active and senior, and would have a 
five-year life. 

The Chief Justice spelled out the 
need for such a tribunal at a speech 
at the American Bar Association's 
midyear meeting in Detroit last 
month and urged his audience to let 
their views be known to members of 

The Chief Justice's most telling 
point was that by Dec. 15, 1984, the 
justices had been assigned as many 
cases as were decided by full opin- 
ions in the entire 1953-54 term of the 
Court. By coincidence, in the first 10 
weeks following Oct. 1, 1984, there 
were 65 cases calling for full signed 

"Why is it so difficult," he asked, 
"to grasp the reality that just as we 
need more pohce and more courts to 
deal with automobile traffic than we 
did 75 years ago, when there were 
very few automobiles, we need 
something more to deal with the av- 
alanche of cases coming to the Su- 
preme Court?" 

What he is urging, the Chief Jus- 
See CHIEF JUSTICE, page 9 


Courts Using Jurors 
More Efficiently 

The number of trial jurors called 
for service in the federal courts rose 
3.7 percent in the last statistical year, 
the Administrative Office reported. 

The percentage of jurors not se- 
lected, seated, or challenged in a 
given day dropped from 19.4 per- 
cent to 18.9 percent, according to a 
report prepared by the AO's Statis- 
tical Analysis and Reports Division. 
It covers the period from July 1983 to 
June 1984. 

The number of jurors who are not 
seated or at least examined for serv- 
ice on a panel in a given day is con- 
sidered a benchmark of how effi- 
ciently jurors are utilized. The report 
singled out the districts of Puerto 
Rico and Minnesota as those where 
the largest percentages of jurors 
called— more than half— are not se- 
lected or challenged on a given day. 
The Eastern District of Oklahoma 
utilized 99 percent of the jurors it 
summoned for service on a given 
day. The study placed the cost of the 
unutilized jurors at $143,833 in 
Puerto Rico and $283 in the Eastern 
District of Oklahoma. 

The national average for 
unutilized jurors was 36.4 percent, 
and their cost was estimated at more 
than $31 million. 

The report also noted that there 
were 232,844 grand jurors used in 

See JURORS, page 5 

Two New Center Publications Available 

E.D. Michigan Mediation 
Program Evaluated 

The Center recently published The 
Wayne County Mediation Program in 
the Eastern District of Michigan, by 
Kathy L. Shuart. The report, part of 
Innovations in the Courts: A Series on 
Court Administration, describes a pro- 
cedure used by the United States 
District Court for the Eastern District 
of Michigan. That procedure, 
adopted in 1981 in response to an in- 
crease in diversity case filings, util- 
izes an exisHng program developed 
by the state trial court in Wayne 
County (Detroit), Michigan. 

In addition to outlining the opera- 
Hon of the mediation program in the 
two courts, the report reviews three 
prior studies of the procedure's per- 
formance, which were based on 
court records and interviews with 
judges and lawyers. Copies of the 
court's rules and selected forms are 
included for the information of 
courts considering adoption of such 
a procedure. 

Copies of the report can be ob- 
tained by writing to the Center's In- 
formaHon Services Office, 1520 H 
St., N.W., Washington, D.C. 20005. 
Enclose a self-addressed, gummed 
mailing label, preferably franked 
(but do not send an envelope). ■ 




Published montWy by the Administra- 
tive Office of the U.S. Courts and the 
Federal Judicial Center. Inquiries or 
changes of address should be directed 
to 1520 H Street, N.W., Washington, 


Alice L. O'Donnell, Director, Division 
of Inter-Judicial Affairs and Infonna- 
tion Services, Federal Judicial Center. 
Joseph F. Spaniol, Jr., Deputy Director, 
Administrative Office of the U.S. Courts. 

May 1, 1985 

The American Bar Association's 
theme for this year's Law Day is 
"Liberty and Justice for AH." 

Asbestos Litigation 
Management Reviewed 

The Center recently published As- 
bestos Case Management: Pretrial and' 
Trial Procedures, by Thomas E. 
Willging, a report based in part on a 
conference of federal judges, magis- 
trates, clerks, and other court per- 
sonnel sponsored by the Center in 
June 1984. 

The report focuses on case- 
management procedures various 
courts have adopted to alleviate the 
pressures of asbestos litigation anc 
facilitate prompt resolution. Among 
the methods described are use o 
standardized pretrial procedures t( 
avoid unnecessary duplication of ef 
fort, use of calendaring systems tc 
establish firm and credible tria 
dates, and consolidation of cases fo 
trial to conserve judicial trial time. 

While recognizing that asbesto 
cases have imposed a substantia 
burden on the resources of a fev 
district courts, the report conclude 
that asbestos cases have become re) 
atively routine products-liabilit 
cases, susceptible to traditional a 
well as innovative case-mangemer 
techniques. Specific procedures 
such as the use of standardize 
pleadings and a novel use of stanc 
ardized sanctions, are documented 
Copies of the report can be ol 
tained by wriring to the Center's Ir 
formation Services Office, 1520 1 
St., N.W., Washington, DC 2000! 
Enclose a self-addressed, gumme 
mailing label, preferably franke 
(but do not send an envelope). 

Multidistrict Panel Refers Bhopal Cases to S.D.N.Y. 

The Judicial Panel on Multidistrict 
Litigation ruled last month that 18 
actions against the Union Carbide 
Corporation, stemming from a gas 
leak at a plant in Bhopal, India, that 
killed an estimated 2,000 people last 

December, would be consolidated ,i 
the Southern District of New Ycc 
for pretrial proceedings. 

The cases were assigned to D- 
trict Judge John F. Keenan. ' 



ircuit and District Historical Societies Trace Courts' Roots 

fwo circuits and four districts now 
ve historical societies, according to 
rhird Branch survey. More such 
janizations will probably be cre- 
d following the suggestion made 
the last Judicial Conference meet- 
; that the chief judge of each dr- 
t appoint a circuit historian, 
rhe circuits with existing historical 
:ieties are the Second and the 
venth. Such groups can also be 
ind in the Southern District of 
w York, the Eastern District of 
insylvania, the Northern District 
California, and the District of 

"he Second Circuit Historical Soci- 
is composed of two parallel 
nmittees — one representing the 
irt and one representing the Fed- 
1 Bar Council, a private group. 
i society's most active unit is the 

Exhibits Subcommittee, which 
arranges historical exhibits that ap- 
pear in the library of the courthouse 
in lower Manhattan. 

The Eleventh Circuit's two-year- 
old society is a private nonprofit or- 
ganization whose membership is 
open to anyone. The society has the 
advantage of chronicling an appeals 
court that has been in existence only 
one year more than the society. 
However, the group plans to record 
the history of all the district courts in 
the circuit, and of judges who have 
served in those courts. It plans to as- 
semble portraits, oral histories, and 
printed materials showing the 
courts' histories. It hopes to publish 
a written history within the next few 

The Federal Circuit, which does 
not have a formal historical society. 

maintains a collection of articles 
about the court. There are also docu- 
ments about the Court of Claims 
and the Court of Customs and 
Patent Appeals, the Federal Circuit's 
predecessor courts. 

The Northern District of California 
Historical Society is not formally 
connected to the court it chronicles. 
It is a private, nonprofit organization 
composed of judges, attorneys, and 

The Oregon district's society is an 
adjunct of the court, but member- 
ship in the group, formed in 1983, is 
open to anyone. The society has be- 
gun an oral-history project and has 
acquired equipment for videotaping 
the court's ceremonial occasions. 

The District Court for the District 
of Columbia is weighing the forma- 
tion of a historical society. ■ 

illiam R. Burchill Named General Counsel 
f AO to Replace Retiring William M. Nichols 

Tie director of the Administrative 
ice has announced the appoint- 
nt of William R. Burchill, Jr., as 
leral counsel of the AO, succeed- 

William M. Nichols, who retired 
: month. 

Ai. Burchill, a graduate of the 
iversity of Pennsylvania and 
3rge Washington University Na- 
lal Law Center, has served in the 
ministrative Office since 1973. He 
s employed as an attorney in the 
igistrates Division before 
isferring to the Office of the Gen- 
1 Counsel in late 1974. He was 
ned associate general counsel in 
6, then deputy general counsel in 
le 1982. Between 1975 and 1982 
served as staff assistant to the Ju- 
ial Conference Committee on the 
eration of the Jury System, 
"he general counsel oversees a 
ff of 12, including six attorneys. 

head of this office, the general 
insel serves as legal advisor to the 

William R. Burchill 

director of the Administrative Of- 
fice, provides staff assistance of a le- 
gal nature to the Judicial Conference 
and its committees, and arranges 
representation for court officers sued 
in their official capacity. ■ 

Sentencing Institute 
Examines New Laws 

The future of sentencing under 
the Sentencing Reform Act of 1984 
was discussed at a sentencing insti- 
tute for circuit and district judges 
and chief probation officers of the 
Eighth and Tenth Circuits in Long 
Beach, Cal., last month. Recent deci- 
sions affecting community service 
and victim restitution, and the im- 
pact of the Bail Reform Act of 1984 
on pretrial and posttrial defendants, 
were also explored. 

In addition to a tour of the Federal 
Correctional Institution at Terminal 
Island, Cal., there were workshops 
focusing on sentencing in hypothet- 
ical cases during the institute, which 
was held from Feb. 3 to 6. 

Two more sentencing institutes 
are being planned: one for the Fifth 
and Seventh Circuits to be held 
Mar. 31-Apr. 3 in Durham, N.C., 
and one for the Second and Sixth 
Circuits to be held Mar. 16-19, 1986, 
also in Durham. ■ 



The publications listed below may be of 
interest to The Third Branch readers. 
Only those preceded by a checkmark are 
available through the Center. When order- 
ing copies, please refer to the document's 
author and title or other description. Re- 
quests should be in writing, accompanied 
by a self-addressed, gummed mailing label, 
preferably franked (but do not send an en- 
velope), and addressed to Federal judicial 
Center, Information Service, 1520 H 
Street, N.W., Washington, DC 20005. 

Coffin, Frank M. A Lexicon of Oral 
Advocacy. National Institute for 
Trial Advocacy (1985). 

Combs, Michael W. "The Federal 
Judiciary and Northern School De- 
segregation: Judicial Management in 
Perspective." 13 Journal of Law and 
Education 345 (1984). 

Committee on Criminal Advocacy 
and Criminal Courts. "Building a 
Consensus on Attorney-Conducted 
Voir Dire: The Proper Roles of Court 
and Counsel." 39 Record of the Associ- 
ation of the Bar of the City of New York 
460 (1984). 

Cooley, John W. "Could Settle- 
ment Masters Help Reduce the Cost 
of Litigation and the Workload of 
Federal Courts?" 68 Judicature 61 
(August 1984). 

Coolley, Ronald B. "Magistrates 
and Masters in Patent Cases." 66 
Journal of the Patent Office Society 374 

Danzig, Richard J. "Jushce Frank- 
furter's Opinions in the Flag Salute 
Cases: Blending Logic and Psycho- 
logic in Constitutional Decisionmak- 
ing." 36 Stanford Law Review 675 

Debevoise, Thomas M. "Sterry R. 
Waterman— An Appreciation." 9 
Vermont Law Review 7 (1984). 

Devins, Neal. "School Desegrega- 
tion Law in the 1980's: The Court's 
Abandonment of Brown v. Board of 

Education." 26 William and Mary Law 
Review 7 (1984). 

Esbeck, Carl H., and Larry M. 
Schumaker. "Current Prachce Under 
42 U.S.C. Sections 1985 and 1986." 
11 Barrister 34 (Fall 1984). 

Fish, Peter G. The Office of Chief 
Justice. University of Virginia (1984). 

Goldberg, Arthur J. "The Pro- 
posed Constitutional Convenhon." 
11 Hastings Constitutional Law Quar- 
terly 1 (1983). 

Lubet, Steven. Beyond Reproach: 
Ethical Restrictions on the Extrajudicial 
Activities of State and Federal Judges. 
American Judicature Society, 1984. 

Mann, Bruce H. "The Formaliza- 
Hon of Informal Law: Arbitration Be- 
fore the American Revolution." 59 
New York University Law Review 443 

Martineau, Robert J. "Frivolous 
Appeals: The Uncertain Federal Re- 
sponse." 1984 Duke Law Journal 845. 

(^Nesbitt, Lenore C. "The Obli- 
gations of a Lawyer in Society." 
Commencement address. University 
of Miami Law School, Jan. 20, 1985. 
Oakes, James L. "Judge Sterry R. 
Waterman." 9 Vermont Law Review 1 

j^Stevens, John Paul. Address 
at dedication of law library, Florida 
State University College of Law, 
Jan. 26, 1985. 

"The Supreme Court, 1983 Term." 
98 Harvard Law Review 1 (1984). 

Taggart, Walter J. "The New 
Bankruptcy Court System." 30 Prac- 
tical Lawyer 11 (December 1984). 

United States Department of Jus- 
tice, Antitrust Division. "Vertical Re- 
straints Guidelines." Jan. 23, 1985. 

Williams, George H., and 
Kathleen M. Sampson, ed. Handbook 
for judges: An Anthology of Inspira- 
tional and Educational Readings. Amer- 
ican Judicature Society (1984). 

Wisdom, John Minor. "Foreword: 
The Ever-Whirling Wheels of Ameri- 
can Federalism." 59 Notre Dame Law 
Review 1063 (1984). 

Discrimination-Law Manual 
Errors Cited, Corrected 

Judge Charles Richey (D.D.C.), 
author of the Center's Manual on Em- 
ployment Discrimirmtion Law and Civil 
Rights Actions in the Federal Courts 
(rev. ed. 1984), has discerned several 
errors in sectton H's procedural flow 
chart, which involves judicial review 
of alleged agency discrimination. At 
Judge Richey's request, in light of 
the growing importance of such re- 
view, the Center is making revisions 
to Manual pages H-26 and H-27 
("Procedural Flow Chart") available 

Third branch personnel who al- 
ready have a copy of the 1984 edi- 
tion of the Manual may obtain the re- 
vised pages by sending a 
self-addressed, gummed label, pref- 
erably franked (but not an envel- 
ope), to the Center's Information 
Services Office, 1520 H St., N.W., 
Washington, DC 20005. 

Note: Please be certain to include 
a notation that you are requesting 
the February 1985 revised pages. ■ 


Mar. 6-7 Judicial Conference of the 
United States 

Mar. 18-20 Civil Case Manage- 
ment Workshop 

Mar. 20-22 Workshop for Judges 
of the Fourth Circuit 

Center's Library Moves 

The Federal Judicial Center's 
media library has moved within 
the Center's headquarters in 
Washington, D.C. The media li- 
brary is now part of the Center's 
Division of Inter-Judicial Affairs 
and Information Services, and its 
direct-dial number is (202) 633-6365 
or (FTS) 633-6365. Written requests 
should be addressed to Informa- 
tion Services, Federal Judicial Cen- 
ter, 1520 H St., N.W., Washing- 
ton, DC 20005. Attn: Media. 


V^alidity of Recess Appointments Upheld 

The judicial authority of judges 
vith recess appointments was 
ipelled out recently in an en banc 
»Jinth Circuit decision rejecting a 
hallenge to a drug smuggler's 

The case stems from the recess ap- 
>ointment of Walter M. Heen to the 
J.S. District Court for the District of 
lawaii on Dec. 31, 1980, while Con- 
fess was not in session. Article II of 
he Constitution gives the president 
ower to make such recess appoint- 
ments, which last until the end of 
lie next session of Congress. 

Judge Heen's nomination was 
nthdrawn on January 21, 1981, and 
e served until the next session of 
Congress ended, on Dec. 16, 1981. 

The issue of Judge Heen's author- 
y arose when a woman convicted 
n drug charges in his court ap- 



mory M. Sneeden, U.S. Circuit 
Judge, 4th Cir., Nov. 30 

homas A. Higgins, U.S. District 
Judge, M.D. Term., Dec. 3 

. A. Little, Jr., U.S. District Judge, 
W.D. La., Dec. 4 


ruce S. Jenkins, Chief Judge, D. 

Utah, Dec. 20 
cott O. Wright, Chief Judge, W.D. 

Mo., Jan. 1 

URORS, from page 2 

le 1983-84 year. In the previous 12 
lonths, 222,980 people served as 
rand jurors. 

The Southern District of New 
ork, with 53, convened the most 
rand juries in that period. The dis- 
icts of Wyoming and North Dakota 
ad only one grand jury each during 
le 12-month period. ■ 

pealed one of his rulings. A Ninth 
Circuit panel, sua sponte, examined 
Judge Heen's authority, rather than 
the substance of his decision, and 
concluded that he was not empow- 
ered to decide the case. The panel's 
decision was overruled, 7-4, by an 
en banc panel in United States v. 
Woodley, No. 82-1028 (9th Cir. Jan. 
14, 1985). The dissent was authored 
by Judge William A. Norris, who 
wrote the panel's decision and was 
joined by three other judges of the 
en banc panel. 

Both the majority opinion and the 
dissent noted that the issue of a re- 
cess appointee's authority had 
arisen only once before, in United 
States V. Allocco, 305 F.2d 704 (2d Cir. 
1962), when the authority of such 
judges was also upheld. ■ 


John A. Reed, Jr., U.S. District 
Judge, M.D. Fla., Dec. 31 

Senior Status 

Samuel P. King, U.S. District Judge, 

D. Hawaii, Nov. 30 
Nauman S. Scott, U.S. District 

Judge, W.D. La., Dec. 4 
Malcolm R. Wilkey, U.S. Circuit 

Judge, D.C. Cir., Dec. 6 
Aldon J. Anderson, U.S. District 

Judge, D. Utah, Dec. 20 
Oliver Seth, U.S. Circuit Judge, 10th 

Cir., Dec. 25 
William E. Doyle, U.S. Circuit 

Judge, 10th Cir., Dec. 28 
Thomas R. McMillen, U.S. District 

Judge, N.D. m., Dec. 31 
larles E. Stewart, Jr., U.S. District 

Judge, S.D. N.Y., Jan. 2 
George C. Edwards, Jr., U.S. Circuit 

Judge, 6th Cir., Jan. 15 
Robert L. Taylor, U.S. District 

Judge, E.D. Tenn., Jan. 15 
Edward McManus, Chief Judge, 

N.D. Iowa, Feb. 9 


J. Robert Martin, Jr., U.S. Dishict 
Judge, D. S.C, Nov. 14 

Crime Bill Broadcast, 
Beamed by Satellite, 
Seen by Over 2,200 

More than 2,200 judges, magis- 
trates, other court employees, and 
federal prosecutors turned out for 
the multicity videoconference on 
new crime-control legislation pro- 
duced by the Federal Judicial Center 
on Jan. 17. 

The program, which was beamed 
by satellite linkup to 30 locations, 
originated in a television studio near 
Washington. Judges and other lec- 
turers discussed different aspects of 
the Comprehensive Crime Control 
Act of 1984 and the Criminal Fine 
Enforcement Act of 1984, and en- 
gaged in several panel discussions. 
The viewing sites had telephone 
connections that allowed partici- 
pants to call in questions for the 

Videotapes of the conference have 
been sent to all district courts, to ei- 
ther the site coordinators — in those 
districts included in the 
broadcast — or to the clerks of court. 
A set of the tapes has also been sent 
to each circuit executive. Requests 
from interested viewers should be 
made to these local officials. ■ 

Position Available 

Clerk of Court, U.S. Bankruptcy 
Court, Western District of Kentucky. 
Responsible for managing the 
administrative functions of the 
clerk's office, and overseeing statu- 
tory responsibilities of the clerk. Re- 
quirements include 10 years' admin- 
istrative experience, including three 
years in a position of substantial 
management responsibility. Aca- 
demic degrees and law practice may 
substitute for some experience re- 
quirement. Salary from $37,599 to 
$52,262. To apply, send resume by 
Mar. 18 to Luther D. Thomas, Clerk 
of Court, U.S. Bankruptcy Court, 
414 U.S. Courthouse, 601 W. Broad- 
way, Louisville, Ky. 40202. ■ 

Equal Opportunity Employer 



MATTHEWS, from page 1 

didn't seem to be a place in 
Mississippi where I could find work 
and also study law. I first went to 
Georgia where 1 taught piano at a 
place near Atlanta. There I took an 
examinntion for a position in Wash- 
ington, and later was offered a posi- 
tion in the Veterans Administration. 
By then 1 was in Chicago so I re- 
ceived the notice after the time I had 
to report had expired. Finally, I got 
on the train, came to Washington, 
went into the Veterans Administra- 
tion, and they put me to work. 

How long did you stay at the Vet- 
erans Administration? 

I stayed long enough for me to 
work and go to night school. It was 
until President Wilson had gone out 
of office and President Harding 
came in, around 1921. by that time I 
had passed the bar. 

You went on the District Court 
for the District of Columbia in 1949. 
But in the meantime you did a lot of 
work to advance women's rights. 
What were you hoping to accom- 
plish by picketing the White House 
while still a law student? 

When 1 was in law school a 
woman came to me and asked if 1 
could come and picket the White 
House for woman suffrage. Women 
didn't have suffrage then. 1 told her 
1 couldn't come because 1 was going 
to be in law school at night and 1 
was working during the day. 1 told 
her 1 had no time and she asked 

Even if they said, "How are you?" 

Well, they didn't say, "How are 
you?" They would say, "Why are 
you here?" Now there was a Mrs. 
H.O. Havemeyer, who was the wife 
of a very wealthy man. This was a 
well-known name in New York. She 
started a fire out in front of the 
White House, so, of course, they ar- 
rested her and took her away in the 
"Black Maria" [paddy wagon]. 1 
didn't want to be arrested because 1 
was afraid if 1 were arrested that rec- 
ord of arrest would follow me. So, if 
the press or anyone else asked me 
why 1 was there, I didn't answer. 1 
stood there with the banner and the 
banner had a message on it, of 

How many pickets were there? 

There were a good many. Some- 
Hmes they came from New York and 
Philadelphia and many other places. 
Fifty sometimes, 25 sometimes; they 
had a lot of people there. 

What year was that. Judge? 

It was 1919. 

Do you remember what was on 
the banners you carried? 

All of the banners we carried had 
on them statements that were re- 
lated to women's rights. Some said 
women at a certain place did this, 
that or the other thing and so why 
not here. Women did have a lot of 
advantages in other places. In 
England, for example, they got the 
vote, but only women who were 30 

"They asked him Who the best man was to help them. . . 
The story goes that this owner of the cafe said that the 
best man is a woman. That was me." 

what 1 did on Sundays. She finally 
persuaded me to go over to the 
White House and to picket on Sun- 
days. At that time you could go to 
the front of the White House, and 
you could carry a banner, but if you 
spoke you were arrested for speak- 
ing without a permit. So when they 
asked me why 1 was there, I didn't 

years old or over could vote, 
whereas men could vote at 21. Much 
later, about 1925 1 think it was, 1 
went to England and 1 marched in a 
parade there. Lady [Viscountess] 
Rhondda invited a group of people 
from the Woman's Party here and 
we went. 1 carried a banner with an- 
other woman from the United 
States. She held one end of it and 1 

held the other, and there was a very 
stiff wind. This banner said, 
"Women in the United States vote at 
21, why not here?" As we passed, 
people along the route would shout, 
"Hear, hear!" At that time Mrs. 
[Emmeline] Pankhurst was living 
and they had a platform and 
benches in Hyde Park in London 
where all the speeches were made. 

Do you think you accomplished 
anything in England? 

Well, of course, but the women in 
England weren't exactly polite ladies 
like they were over here. They did 
annoying things to get their message 
across. For example, they put things 
in mailboxes that would stick to the 
hands — childish things like that. Of 
course, here in the United States, 
they did many things too. They vi- 
sited the Senate Gallery and they 
would unfold a banner that had a 
message on it. 1 never participated 
in this sort of thing but that was be- 
ing done at that time. 

Do you think President Wilson 
ever saw you? Did he ever comment 
on your activities? 

President Wilson finally was in- 
strumental in getting the vote for 
women. But he and others had to be 
educated about certain things. 

And you helped educate him? 

1 tried to. 

Did you ever meet President 

No, 1 don't think so. 1 saw him 
but 1 never met him. 

How long did you keep up your 
activities in the suffrage movement? 

Well, it wasn't many years, be- 
cause the suffrage amendment — the 
XIX Amendment to the U.S. Consri- 
tuhon— was finally passed in August 
of 1920. 

Did you participate in activities 
other than picketing in front of the 
White House? 

The National Woman's Party had 
activities and they asked me to help, 
so 1 did for a while. They would ask 



le to look up legal matters and to 
ive advice. There were a lot of 
lings in Louisiana especially, but in 
ist about every state they had some 
^pe of discrimination against 

The men's bar, right here in the 
•istrict of Colum- 
ia, didn't even 
How women to 
? admitted to the 
istrict of Colum- 
ia Bar Associa- 

I made an ap- 
lication with 
uee other 

omen for admis- 
on to the Bar 
ssociation here 
I Washington, 
id my check was 
'turned to me as 
believe theirs 
ere returned to 
lem. [Judge Mat- 
lews saved this 
ncashed check 
id it, along with material denying 
?r application, is now a part of the 
amita Shelton Matthews Collection 
: Radcliffe College, Cambridge, 
[ass.] They said that our sponsors 
id withdrawn their sponsorship, 
at that wasn't true; they hadn't, 
nd these men who sponsored us 
1 said that wasn't true. But, never- 
leless, they got rid of us in that 
ay and said we couldn't be admit- 
d, and we weren't for a long, long 

Now, take jury service here in 
Washington. Women weren't al- 
wed to serve on juries here for a 
ng time. I drew up for the Wom- 
I's Party a bill to allow women to 
trve on juries, and the bill passed, 
lere were a lot of other discrimina- 
3ns against women right here in 
le nation's capital. For example, 
ley had all kinds of discriminations 
;ainst women in the inheritance 

But the legislation that finally 
issed goes to your credit? 
It was pretty well known that I 

was working on it and after a while 
the Woman's Party gave me a re- 
tainer which was very much appre- 
ciated because, of course, all this 
other work that 1 had done for them, 
I had done as an individual and as 
somebody who was interested in the 

Representing the Yeoman's Party at the White House in 
left: Burnita Shelton Matthews, Mrs. Harvey Wiley, 
Earhart, Anita Pollitzer, and Ruth Taunton. 


When you got out of law school 
did you remain at the Veterans 

No. I didn't stay at the Veterans 
Administration. I rented a little of- 
fice not very far from the old court- 
house and engaged in private 

And your activities with the 
Woman's Party continued? 

Well, yes, they did. I became their 
attorney. The Woman's Party was 
interested in getting laws passed in 
different states removing discrimina- 
tions against women. I would draft 
the bills and send them to the per- 
son in charge of that in a particular 

Were you continuously in private 
practice until you went on the court 
in 1949? 


You must have had extensive ex- 
perience, then. 

Well, there were a lot of condem- 
nation cases at the time. For in- 
stance, this property right out here 

1932 were, from 
aviatrix Amelia 

was privately owned, as was a lot of 
other property, including property 
where the statue of Senator [Robert] 
Taft now stands. All of that was 
taken by the federal government. 
They also took property for the addi- 
tion to the Library of Congress. 
Then they took 
the National 

Woman's Party's 
property on Capi- 
tol Hill. I repre- 
sented the party 
in that condemna- 
tion case. I got for 
them the largest 
award that was 
given in the 
whole condemna- 
tion. The Wom- 
an's Party prop- 
erty was a choice 
piece of property 
because it stood 
right across from 
the Capitol. Many 
other people also 
had their property 
condemned in that area. One day 
they went to a cafe owned by a man 
who knew all about this property, 
including property where the Su- 
preme Court now is. They asked 
him who the best man was to help 
them with their condemnation 
cases. The story goes that the owner 
of the cafe said that the best man is a 
woman. That was me. 

Why were they trying to get this 
particular piece of property? 

Well, I suppose it was because of 
its close proximity to the Capitol. 
The government announced that 
they were going to take it. The Su- 
preme Court was tucked away and 
housed in quarters in the Capitol. 
William Howard Taft, when he 
ceased being president, made it his 
business to try to get a location for 
the Supreme Court because he said 
the Supreme Court had been tucked 
away in corners in the Capitol long 
enough. At that time, they [the Jus- 
tices] saw people in their homes. So 
I went to see Taft in his home when 
See MATTHEWS, page 8 


mW 1 



MATTHEWS, from page 7 

he was the Chief Justice. I went to 
see him because the Woman's Party 
said I must, and that I must tell him 
that he should take some other 
property, not theirs. Most of the 
property owned by the Woman's 
Party had been given to them by 
Mrs. O.H.P. Belmont [formerly Mrs. 
Wilham K. Vanderbilt]. I repre- 
sented her in this condemnation, 
too, because they were taking her 
property, the same property that she 
had intended, eventually, to give to 
the Woman's Party to add to their 
other holdings. 

Before President Truman nomi- 
nated you to the U.S. district court 
in 1949, the late Judge T. Alan 
Goldsborough of the District of Co- 
lumbia was quoted as having said 
that he felt that "Mrs. Matthews 
would be a good judge, but that 
there was just one thing wrong: 
She's a woman." Didn't you get in- 
censed knowing what hurdles you 
had to jump to get on the court? 

Well, yes, but I did have quite a 
bit of help. Through my work for 
the Woman's Party, 1 got to know a 
good many of the representatives 
and senators; so, when 1 was being 

Harry S Truman: "This 
was one appointment 
about which I had no 
misgivings, only genuine 

when I was named to the court. She 
was a very friendly person and was 
anxious to see that women were 
helped in every way. Of course she 
was disappointed, and a lot of peo- 
ple were, that she wasn't named to 
the Supreme Court. 

How did you select your law 
clerks. Judge? 

Through resumes and through 
personal interviews. I had only one 

considered for a judgeship, 1 was 
able to get the endorsement of a lot 
of senators. And India Edwards, at 
the Democratic national headquar- 
ters, was most helpful. 

At that time, no woman had got- 
ten a federal judgeship other than 
Judge Florence Allen, who was then 
on the U.S. Court of Appeals for the 
Sixth Circuit, judge Allen was very 
good . 

You knew Judge Allen? 

Yes. She was a very handsome 
woman and she came down here 

1 can't reallly say that 1 did. The 
judges here were very helpful to me 
when I first came to the court. There 
was a serious space problem when 1 
was appointed, and judge Edward 
Tamm even vacated his chambers 
and let me use them on the day of 
my inauguraHon as a judge. As for 
Judge Goldsborough, he thought it 
was a great mistake to appoint a 
woman, but he told me later that he 

"I wanted to show my confidence in women, so I always 
chose women las law clerks]." 

law clerk. Now a district court judge 
may have two law clerks. 

Did you select your clerks from 
special law schools? 

No. But I never had a man; they 
were always women. The reason I 
always had women was because, so 
often, when a woman makes good 
at something they always say that 
some man did it. So 1 just thought it 
would be better to have women. I 
wanted to show my confidence in 
women, so 1 always chose women. 

Before the president nominated 
you. Judge, did he discuss with you 
any problems he felt you might en- 
counter as the first woman in the 
nation on a district court? 

No, he never did. The only time I 
saw him after that was when I went 
up there one day to thank him for 
my appointment. Somehow 1 went 
on the wrong day. 1 don't know 
whether he made the mistake or 1 
did; but, at any rate, we had a nice 
visit. When I became a senior judge. 
President Truman was still living. 
There was a very commendatory ed- 
itorial that appeared in the [Wash- 
ington] Post, which Mrs. Seaton, my 
secretary, sent him, and he acknowl- 
edged it in a letter and said, "This 
was one appointment about which I 
had no misgivings, only genuine 

Did you encounter any prejudice 
from other judges or lawyers when 
you first came on the bench? 

thought I had done a good job and 
he no longer resented the fact that I 
was a judge. 

What kinds of cases did you han- 
dle during your early tenure? 

We had an assignment commis- 
sioner then, Richard Collins, and he 
would talk over the assignments 
with Chief Judge [Bolitha] Laws and 
the chief judge would then deter- 
mine to whom they were to be as- 
signed. Once, Chief Judge Laws 
sent for me and wanted to know if I 
would take a case that had been as- I 
signed to another judge. He wasn't 
happy with the speed, or the lack of 
speed, that the other judge evi- 
denced, and he asked me to take the 
case, and I took it. But I felt sorry 
afterwards that I took it because it 
was a most difficult case. 

Do you remember which one it 

Yes. It was one where a black man 
had invaded a building occupied by 
women, and he killed one woman. 
It was a mean case. It charged the 
offense in several different catego- 
ries, which had to be differentiated; 
1 regretted that I was so quick to ac- 
cept Judge Laws' suggestion that I 
take the case. 

When you took senior judge sta- 
tus, you sat in the court of appeals 
by designation. Did grappling with 
a case along with two other judges 
have any effect on your relation- 
ships with your brethren? 



Insofar as the court of appeals is 
jncemed, I don't think that it did. I 
?member one case very well. It was 
patent case. I was told to write the 
roposed opinion even though the 
ther two judges didn't tell me what 
\eir opinion was of the case. 

You were to author the opinion 
nd circulate it to the other two 

Oh, yes, circulate it; after you get 

written, you circulate it. 

Customarily you have a post- 
ench conference and decide not 
nly what goes into the opinion, but 
'ho is to write it. You try to deter- 
line what the others think about it 
t that point, or later when they 
ave had a chance to further study 
. But sometimes you don't have a 
lance to study it before you have 
lis initial conference. And so at this 
me they said, "You write the opin- 
m." I was to write it, but they 
idn't tell me what I was to say. My 
roposed opinion became the unani- 
lous opinion of the court. 

Why did you take the circuit as 
pposed to doing more work on the 
istrict court when you took senior 

I served on both courts. I took the 
rcuit assignment because the chief 
idge of the court of appeals asked 
le to. He didn't say what case but 
ist inquired whether I would sit on 
\e court of appeals. You don't usu- 
lly specify the time. They just send 
\e cases to you, and then you go on 
om there. 

You did that in 1968, and you 
tayed there quite a while? 

It was until 1977. 

Did you ever feel that your au- 
liority as a judge was not fully ac- 
epted in the courtroom? 

1 never felt that way. I always had 
ontrol of my cases and my 

Were there some cases especially 
nteresting to try? 

Yes, and there are a lot of cases 
hat were dull. When I first came on 
he bench, they had all kinds of 
ases here. They even had divorce 
ases in the federal court. We had all 

the probate work — every bit of 
it — wills and contests of that kind. 
So, I've lived through all of that. 

You have had some high-priced 
talent before your bench, including 
Leonard Boudin and Arthur Gold- 

"I always had control of 
my cases and my 

berg, and you have handled several 
very important cases, constitutional 
issues involved in naturalization 
cases; significant issues in adminis- 
trative law cases; and others. Were 
there any cases which you remem- 
ber best as making new law or that 
had special importance to the legal 

Well, aU the cases were important, 
if not to the legal world, then to the 
litigants themselves. I don't like to 
designate any as special. 

One in particular did give me 
much personal satisfaction because 
had it gone the other way, 1 felt it 
would have been a great injustice. It 
involved Glover Park here in the 
District of Columbia. This property 
had been accepted for park pur- 
poses, and 1 saw no reason in the 
world for taking this property. I just 
felt it was wrong and ruled against 
the proposal, hence no freeway has 
ever been built through Clover Park, 
which remains today one of Wash- 
ington's nicest park areas. ■ 

CHIEF JUSTICE, from page 1 

tice explained, is nothing more than 
"a national en banc panel of nine 
judges. It is just that simple." He 
has proposed a temporary court in 
the past, most recently in his year- 
end report on the judiciary last De- 
cember; the current proposal is a 
modification of those made by the 
Freund, Hruska, and Rosenberg 

The Chief Justice's proposal in- 
cluded an explanation of how the 
new court would be constituted and 
how it would function. The Su- 

preme Court would select one judge 
from each of the 13 circuit courts. 
Nine judges would sit in two ses- 
sions a year of two weeks each, to 
hear cases referred by the Supreme 
Court; the other four judges in re- 
serve would be available if any of 
the first nine were unavailable or 
disqualified. Review of the new 
court's decisions by the Supreme 
Court wouldn't be barred, but "I 
would risk a prediction that few 
cases would be granted further re- 
view," the Chief Justice said. 

The Chief Justice maintained that 
such a panel would go a long way 
toward reducing the "avalanche of 
cases" the Supreme Court must now 
deal with in full Court opinions; in 
each of the last three terms, nearly 
50 cases argued have involved inter- 
circuit conflicts. He noted that the 
number of written opinions the 
Court issues — which he called "the 
best single measure" of the Court's 
workload — had gone from 65 to 
more than 150 in two decades. The 
removal of intercircuit-conflict cases 
could cut the caseload by about a 

The new panel would also not 
cost any significant amount, aside 
from the judges' travel expenses, 
since the Court of Appeals for the 
Federal Circuit has tendered its 
courtroom, and that court's staff and 
the Supreme Court's could readily 
absorb the additional clerical work 

Chief Justice Burger explained that 
his conception of the new intermedi- 
ate court was a "modification" of 
plans advanced more than a decade 
ago by a study group headed by 
Professor Paul A. Freund under the 
auspices of the Federal Judicial Cen- 
ter, and a congressional commission 
headed by Sen. Roman Hruska. 
Similar proposals were introduced in 
Congress in 1981, 1982, and 1983. In 
the last session of Congress, sub- 
committees in both the House and 
Senate favorably reported bills with 
similar such provisions out to their 
full judiciary committees. ■ 

10 # ^^^ 



New methods. Efforts to get 
judges to employ alternative dis- 
pute-resolution techniques in liti- 
gated cases will be promoted in a 
new program sponsored by a group 
devoted to finding alternatives to 

The goal of the campaign, known 
as the Judicial Project, is to make 
both federal and state judges more 
aware of, and thus more willing to 
use, alternative dispute-resolution 
methods. It is sponsored by the 
New York City-based Center for 
Public Resources' Legal Program. 

The Legal Program will sponsor 

workshops, seminars, and publica- 
tions on alternative dispute- 
resolution methods and how they 
can be implemented. Funds will also 
be provided for academic research 
on the topic. 

The Legal Program is composed of 
law professors and attorneys in pri- 
vate practice. The Judicial Project's 
advisory committee includes practi- 
tioners, professors, and members of 
the judiciary. 

* * * 

Old methods. You can please most 
of the people most of the Hme — at 
least that's what the clerk's office in 
the District Court for the District of 
Columbia has found. 

A poll taken by the clerk's office in 
November revealed that 91 percent 

of those who have business in the 
court rated the service of the staff of 
the clerk's office as "excellent." An- 
other 7 percent called the service 
"very good," while 1 percent called 
it "average," and 1 percent called it 
either "fair" or "poor." The written 
questionnaire focused on whether 
the clerk's office employee was cour- 
teous, efficient, and able to answer 
questions or willing to seek assist- 
ance if he or she could not be of 

* * * 

New rules. The U.S. District 
Court for the Northern District of 
Georgia has revised its local rules. 
The extensive revision was prepared 
by a committee of four of the court's 




Vol. 17 No. 3 March 1985 

The Federal Judicial Center 
Dolley Madison House 
1520 H Street, N.W. 
Washington, D.C. 20005 

Official Business 




08595 G 000344 1 

Postage and 

fees paid 

United States 










idicial Conference Lifts Time Guidelines 
overning Selection of Law Clerks 

rhe Judicial Conference has de- 
ed not to extend time restrictions 
judges' hiring of law clerks, 
opted experimentally two years 

Elimination of the nonbinding 
idelines leaves judges free to in- 
view and select clerks at any time, 
rhe guidelines, originally promul- 
ed in 1983, called for judges not 
accept applications for clerkships 
til Sept. 15 of a student's third 
ir. The deadline was later 
mged to July 15, following a stu- 
ff's second year. 

'he Conference's decision not to 
end the guidelines followed a 
vey conducted by the Federal Ju- 
ial Center that found judges al- 
st evenly split over whether the 
licial Conference should be in- 
ved in setting policy on hiring 

law clerks. The views of the judges 
were even more divided on what the 
guidelines should provide, if any 
were adopted. 

The survey also found that more 
judges in the Northeast and mid- 
Atlantic regions favored guidelines, 
while fewer in other areas did. 

Many judges who favored keeping 
a cutoff date suggested an earlier 
date so they could meet competition 
from law tirms that made decisions 
before the judges could act under 
the present schedule. 

Many judges who opposed 
guidelines said that they felt the Ju- 
dicial Conference should not be in- 
volved in the matter. Others said 
that the guidelines were impractical 
because they were voluntary, and 
that the judges who did not observe 
them frustrated the process. ■ 

tief Judge Donald P. Lay Describes ''Blueprints 
►r Judicial Management" in Eighth Circuit 

hief ]udge Donald P. Lay took his 
on the Eighth Circuit bench on 
'. 26, 1966, and became chief judge 
Dec. 31, 1979. He attended the 
ted States Naval Academy and later 
wed both a B.A. and a J.D. from the 
versity of Iowa. 

rior to his court service, judge Lay 
ticed law in Omaha and Mihvaukee. 

«UU» »;>:;::i^; 

VOLUME 17 Rx •;'J:; ■ 



APRIL 1985 





• ■'■■•V--:; . 




He has lectured at the National judicial 
College and currently teaches at the Uni- 
versity of Minnesota Law School and the 
William Mitchell College of Law. Besides 
enjoying teaching, the judge firmly be- 
lieves in what Chaucer referred to years 
ago — that one who teaches learns. 

You are nearing your 20th year on 
the bench and have seen many 
changes in the judicial system. 
What one change do you think is 
the most remarkable? Over this pe- 
riod, what significant substantive, 
change have you observed in the^^fr' 
role of the federal judiciary? 

Chief judge Donald P. Lay 

First, from an administrative poinf ^^ft' 
of view, I think the most remarkable 
change that I have seen in almost 20 
years is the ability of the courts to 
take on new and innovative ap- 
proaches in the decisional process in 
handling the large growth of litiga- 
See LAY, page 4 

judge Arlin M. Adams 

Judge Arlin M. Adams 
Named to FJC Board 

Judge Arlin M. Adams of the 
Third Circuit has been named to a 
four-year term on the Board of the 
Federal Judicial Center by the Judi- 
cial Conference. 

Judge Adams was appointed to 
the circuit court in 1969. He is a 
graduate of Temple University and 
the University of Pennsylvania Law 
School, and holds a master's degree 
from Temple. 

Judge Adams was Pennsylvania's 
secretary of public welfare from 1963 
to 1966 and currentiy serves on the 
Judicial Conference Committee on 
the Judicial Branch. Judge Adams 
will replace Judge Cornelia G. 
Kennedy of the Sixth Circuit, whose 
nonrenewable term expired last 

Judge Adams is a member of the 
American Law Institute, the Ameri- 
can Bar Foundation, the American 
Judicature Society, and the Ameri- 
can, Philadelphia, and Pennsylvania 
See ADAMS, page 2 


Courts Split on Seizure 

Of Lawyers' Fees p. 2 

McFariand Selected as 

Tom C. Clark Fellow p. 3 

Summary of Actions 

By Judicial Conference ... p. 3 

2 ^ 




Employment Bias 
Supplement Published 

The Center recently published a 
supplement to George Rutherglen's 
Major Issues in the Federal Law of Em- 
ployment Discrimination (FJC 1983). 
This 70-page supplement covers de- 
velopments in employment discrimi- 
nation case law from September 
1983 to August 1984. It also contains 
a bibliography of recent books and 
articles and a table of authorities 
cited in both the supplement and 
the 1983 monograph. 

Among the topics discussed are 
preferential treatment; claims of dis- 
parate treatment, disparate impact, 
and sexual discrimination under title 
VII of the Civil Rights Act of 1964; 
procedural provisions of title VII 
such as statutes of limitations; and 
regulation of recipients of federal 


Copies of the supplement can be 
obtained by writing to Information 
Services, 1520 H St., N.W., Wash- 
ington, DC 20005. Enclose a self- 
addressed, gummed mailing label, 
preferably franked (but do not send 
an envelope). ^ 

Two Courts Differ on Seizure of Legal Fees 

ADAMS, from page 1 

bar associations. He is a former pres- 
ident of the American Judicature So- 
ciety and has served as chancellor of 
the Philadelphia bar and as a mem- 
ber of the house of delegates of the 
Pennsylvania and American bar as- 
sociations. B 

Two courts have issued differing 
opinions on whether the Compre- 
hensive Forfeiture Act of 1984 per- 
mits the government to seize legal 
fees paid by a defendant who is later 

A district court in Denver held in 
January, in U.S. v. Rogers, 84- 
CR-337, that such fees were not for- 
feitable. Last month, in U.S. v. 
Payden, No. M-11-188, a Southern 
District of New York court held that 
such fees are subject to seizure. 

The new legislation, codified at 18 
U.S.C. § 1963, is an amendment to 
the Racketeer Influenced and Cor- 
rupt Organizations Act (RICO) and 
provides that assets of a person sub- 
sequently convicted of racketeering 
are subject to forfeiture. The rele- 
vant assets are not those on the date 
of conviction, but those at the time 
of the acts on which a later convic- 
tion is based. Assets transferred af- 
ter the time of the act are subject to 
seizure from the recipients, with cer- 
tain exceptions. 

Judge John L. Kane (D. Colo.), 
ruling on a motion to exclude attor- 
neys' fees from any possible forfeit- 
ure, found that Congress intended 

^ — 



Published monthly by the Administra- 
tive Office of the U.S. Courts and the 
Federal Judicial Center. Inquiries or 
changes of address should be directed 
to 1520 H Street, N.W., Washington, 
DC 20005. 

Co- editors 

Alice L. O'Donnell, Director, Division 
of Inter-Judicial Affairs and Informa- 
tion Services, Federal Judicial Center. 
Joseph F, Spaniol, Jr., Deputy Director, 
Administrative Office of the U.S. Courts. 

to subject assets in a third party's 
hands to forfeiture only if those as- 
sets were transferred "as some type 

of sham or artifice The attorney 

who receives funds for bona fide 
services rendered engages in neither 
a fraud or a sham." 

The issue of seizure was not di- 
rectly raised in the New York case, 
which arose from a defendant's mo- 
tion to quash a subpoena to his at- 
torney seeking information about 
the lawyer-client fee arrangement. 
The information was being sought to 
show the availability of profits from 
narcotics trafficking. One of the ar- 
guments the defendant raised was 
that the requested disclosure might 
lead to forfeiture of the fee, and that 
the threat of such forfeiture deprived 
him of his right to counsel. 

In making that argument, the de- 
fendant cited Rogers. Judge David N. 
Edelstein ruled that "Rogers cannot 
be accepted as the law in this dis- 
trict. In the same manner that a de- 
fendant cannot obtain a Rolls-Royce 
with the fruits of a crime, he cannot 
be permitted to obtain the services 
of the Rolls-Royce of attorneys from 
these same tainted funds." ■ 

Ninth Circuit Workload Study Published by FJC 

The Center recently published Ad- 
ministration of justice in a Large Appel- 
late Court: The Ninth Circuit Innova- 
tions Project, by Joe S. Cecil of the 
Center's Research Division. 

In an effort to improve court per- 
formance, the Ninth Circuit in 1982 
adopted a series of procedures col- 
lectively known as the "Innovations 
Project." The project included a 
commitment by each of the judges 
of the circuit to accept a substantially 
increased workload. In addition, 
three major innovations were imple- 
mented to expedite the handling of 
appeals: the Submission-Without- 
Argument Program, the Prebriefing 
Conference Program, and changes 
in the calendaring of arguments. 

The report outlines the project 
and reviews its effect on case proc- 
essing and on the judges and their 
workload. It concludes that the In- 
novations Project has substantially 
reduced disposition time in the 
Ninth Circuit. The court had no 
backlog of cases ready for argument 
at the end of the 1984 staristical 
year— a tribute to the judges— but 
there were still more than 4,300 
cases, or 573 per panel, pending in 
the circuit on that date. 

Copies of this report can be ob- 
tained by wriring to Information 
Services, 1520 H St., N.W., Wash- 
ington, DC 20005. Enclose a self- 
addressed, gummed mailing label, 
preferably franked. B 


fudicial Conference Supports Proposed Action on Immunity 

The Judicial Conference voted last 
nonth to support state judges' re- 
[uests that Congress immunize 
hem from liability for attorneys' 
ees stemming from their official 

The state judges are concerned 
bout the Supreme Court's 1984 de- 
ision in Pulliam v. Allen, 104 S. Ct. 
970 (1984), which held that a plain- 
iff who was entitled to injunctive 
ehef against a state magistrate un- 
er the Civil Rights Act was entitled, 
nder the act, to recover attorneys' 
?es from the official. 

The Conference of [State] Chief 
jstices earlier approved a resolution 
aUing on Congress to change the 
ivil rights law to provide immunity 
)r state judges. The Judicial Confer- 
nce's Committee on Court Admin- 
tration noted in its report to the 
inference that the state judges' 
roup had urged the Conference to 
jpport the proposed legislation. 

In other developments at last 
lonth's session, the Conference: 

• Received its Court Administra- 
on Committee's report unani- 
lously approving the most recent 
ersion of the Five- Year Plan for Au- 
jmation in the United States 
ourts. This plan includes estimates 
f when projects already under way 
ill be completed. 

• Made public a list of 106 district 
)urt and circuit court vacancies as 
[ March 1. Eighty-five of these are 
idgeships created by Congress last 
Jar, and nine nominees have been 
amed to them so far. Of the re- 
laining twenty-one vacancies, 
hich were created by retirement, 
jsignation, elevation, or death, only 
vo nominations for successors have 
?en named. One of the judgeships 
ir which no nomination has been 
lade has been vacant since October 
>83; two others have been vacant 
nee January 1984. Attorney Gen- 
al Edwin Meese, who was sworn 

1 February 25, has pledged that fill- 
ig vacant federal judgeships will be 
le of his highest priorities. 

• Elected Judge Jack R. Miller of 
the Court of Appeals for the Federal 
Circuit to replace Chief Judge 
Howard T. Markey of the same 
court on the Board of Certification, 
which certifies circuit and district 

• Approved changes to two bank- 
ruptcy rules that would alter the re- 
strictions on appointments made by 
bankruptcy judges and the disquali- 
fication of such judges. Consistent 
with the Canons of Judicial Ethics, 
rule 5002 was amended to allow a 
bankruptcy judge to appoint some- 
one related to another bankruptcy 
judge in the same district. The pro- 
hibition against a judge's appointing 
anyone he or she is related to re- 
mains in effect. The amended rule 
would also allow appointment of 
someone in the same firm as, or as- 
sociated with, a person who is 
disqualified from appointment by 
virtue of a connection to the ap- 
pointing judge. Rule 5004 was 
amended to make clear that disquali- 
fication of bankruptcy judges is gov- 

erned by 28 U.S.C. 455, which spells 
out the criteria governing judges' 
disqualification of themselves. The 
amended rules now go to the Su- 
preme Court for approval, and then 
to Congress. 

• Authorized free distribution of 
copies of local rules of the district 

• Voted to recommend to Con- 
gress that a district executive be au- 
thorized for any district with eight 
or more judges. 

• Approved changes in the proce- 
dures for reporting cases under ad- 
visement or submission, beginning 
with the report due next September. 
The reports will now be sent to the 
circuit executives, rather than to the 

• Authorized the Ad Hoc Com- 
mittee on American Inns of Court to 
proceed with plans to create a pri- 
vate, nonprofit American Inns of 
Court foundation in the District of 
Columbia. The foundation would 
charter new Inns of Court and 
coordinate their activities. ■ 

Douglas D. McFarland, left, has been named this year's Tom C. Clark Judicial 
Fellow, a special designation for one of each year's Judicial Fellows, which were 
started in 1977 following the death of Justice Clark, the first chairman of the Judicial 
Fellows Commission. The Hon. Kenneth Rush, a member of the selection commission 
and former ambassador to France and Germany, presented the award. 


LAY, from page 1 

tion that has occurred since 1966. 
For example, when I was appointed, 
in my own circuit we processed ap- 
proximately 400 cases a year. Our 
procedures were in the "horse-and- 
buggy" days; we would hear argu- 
ment in three cases a day for one 
week a month, or about 15 cases a 
month. Each case received a full 30 
minutes of argument, and a full 
opinion was written on each case. 
We have experienced tremendous 
increases in case filings; in the 
Eighth Circuit we will process ap- 
proximately 2,000 cases this year. All 
circuits have experienced a similar 
rise in filings. In spite of these in- 
creases the circuit courts have done 
a tremendous job in expediting and 
managing the case flow. In studying 
the opinions of the other circuits I 
think each court of appeals has inno- 
vated new procedures and yet has 
maintained quality in the decisional 

As to the most significant change 
in the substantive role of the judici- 
ary, I would point to the overall con- 
cern of federalism— that is, the cur- 
rent deference and comity within 
the federal system given to the 
states in many areas of the law. To- 
day, the pendulum has swung the 
other way. Instead of the federal ju- 
diciary assuming the guiding role 
under the U.S. Constitution, the 
states are given an equal or 
dominant role. This has not been 
achieved without a good deal of ten- 
sion. For example, today there are 
many procedural obstacles for state 
prisoners to come into federal court: 
(1) total exhaustion of all state reme- 
dies; (2) whether a prisoner is pre- 
cluded from coming into federal 
court by reason of a state procedural 
bypass rule; (3) whether there 
might be "cause" for failure of the 
petitioner's attorney to make a con- 
temporaneous objection; and (4) if 
there was cause, whether that was 
"prejudice" to the petitioner. These 
procedural obstacles have not 
deterred state prisoners from filing 

lawsuits. They have resulted in 
causing greater work for the district 
courts and the courts of appeals. 
The great percentage of these cases 
could be disposed of very easily on 
the merits; however, before we 
reach the merits the lower federal 
courts have to initially pass on the 
many procedural concerns. 

In so many of these cases we 
could decide the merits very quickly. 
Handling habeas cases in the late 
1960s and 1970s was much easier for 
the courts. I think the majority of 
federal judges find many of the pro- 
cedural rules are counterproductive. 
This is perhaps one of the most sig- 
nificant changes we have encoun- 
tered in the federal judiciary in the 
last 20 years. 

Are you saying large numbers of 
habeas corpus filings continue in 
the federal courts? 

We still see as many habeas cases 
filed by state prisoners as in the 
past. Today they are most often not 
as successful, but at the same time 
they are not all frivolous. Many 
judges feel that some of the states' 
procedural rules need further analy- 
sis in terms of impact upon the fed- 
eral judicial system. Many of these 
rules are causing excessive concen- 
tration of time and research by the 
lower federal courts. 

In a recent law review article, you 
made it clear that you are with a mi- 
nority of federal judges who favor 
retention of diversity of citizenship 
jurisdiction. Why do you favor re- 
tention of diversity jurisdiction? 

Many federal judges favor the ab- 
olition of diversity of citizenship ju- 
risdichon. On the other hand, the 
American Bar Association and the 
American Trial Lawyers Association 
have opposed this. I am in favor of 
raising the jurisdictional amount in 
diversity cases from $10,000 to 
$50,000. Otherwise, 1 oppose aboli- 
tion of diversity jurisdiction. 

First, I know the Conference of 
Chief Justices has stated that the 
state courts can handle the shift of 
responsibility. However, 1 have 
talked to many state judges across 

the country, and many just shake 
their heads and say that their system 
is so overcrowded right now that to 
take on diversity cases from the fed- 
eral district courts would, in some 
instances, simply break the system 

There are many other reasons 
why diversity cases should remain 
in the federal courts. One relates to 
the logistics of trying cases in rural 
areas. If you had to try a sophistica- 
ted product-liability case in Broken 
Bow, Nebraska, the problems in 
having witnesses travel from MIT or 
California to Broken Bow are insur- 
mountable. Some rural county seats 
may be 300 miles from the nearest 
airport. The logistics of having phy- 
sicians and specialists attend trial 
would be disheartening. The cost to 
try a sophisticated malpractice or 
product case in rural areas would be 

Another reason to retain diversity 
cases in federal courts is the problem 
presented by mass tort litigation. 
The federal judge who is appointed 
by the multidistrict litigation panel 
has the authority under title 28, sec- 
tion 1407, to bring all federal cases 
from across the nation to a central 
place for pretrial adjudication of dis- 
covery, pretrial motions, and man- 
agement of class-action cases. We 
can do that in the federal system, 
but the state systems do not have 
the authority to manage cases filed 
in other states. A state court does 
not have authority to issue process 
beyond its own state borders. It is 
essential that we maintain the capac- 
ity to expedite and adjudicate pre- 
liminary procedures through a 
single judge in a muUidistrict assign- 
ment. We couldn't do that if we 
abolished diversity jurisdiction in 
federal courts. All of these cases 
would have to be tried separately in 
each state. If diversity jurisdiction 
were abolished in federal courts, it 
would be essential to provide an ex- 
ception for a federal forum to try 
mass tort cases. 1 frankly cannot per- 
ceive how Congress could draft a bill 
to provide such an exception. 


If diversity jurisdiction is abol- 
ished in the federal courts, you 
said, "The role of the federal court 
in the social and economic fabric of 
America will become secondary in 
the eyes and minds of a vast num- 
ber of lawyers." Are you saying, in 
essence, that the federal courts feel 
a responsibility to influence the in- 
terpretation of states' common law? 
I don't think federal judges have 
a responsibility any more than any 
other judge. But, if federal judges 
are handling diversity cases, they 
obviously have the duty to impose 
the law of the particular state under 
Erie R.R. v. Tompkins. All federal trial 
judges are experienced lawyers in 
their respective states, and some are 
former state judges who have a 
great working knowledge of what 
the state law is. There are many 
cases throughout the country where 
the opinions of the federal courts 
have made major contributions to 
state law. Consider, for example, the 
second-collision injury cases involv- 
ing automobile manufacturers. Our 
circuit court had one of the first 
cases in this area. This was the case 
of Larson v. General Motors. The law 
in this case has been adopted by 
practically every state in the coun- 
try. When I was a lawyer we had a 
great district judge in the state of 
Iowa, Henry Graven. Judge Graven 
once wrote about a 60-page opinion 
in a case called Russell v. Turner on 
the Iowa Guest Statute. This was a 
compendium of all gross negligence 
and guest passenger cases in Iowa. 
It became almost a bible for state 
judges thereafter. So federal judges 
have added a good deal to the law of 
a particular state. I have never heard 
any resentment by state judges of a 
federal court passing on state law. 

The Administrative Office reports 
that statistics on all the circuits 
show that the Eighth Circuit has 
had the largest percentage increase 
in filings since 1979, an increase of 
89.5 percent. What has your circuit 
done to cope with this substantial 

Over the years our court has stud- 

ied different ways and means to 
maintain a current docket. I know 
that many other circuits have inno- 
vative ways of handling cases, and 
our procedures are not too much dif- 
ferent from what others have done. 
Two common things that have been 
done in practically every circuit are 

Chief Judge Donald P. Lay 

the screening of cases and the devel- 
opment of staff law clerks who work 
on pro se litigation and non- 
argument cases. It's interesting to 
note that from 1966 to about 1970 we 
had one staff law clerk; now we 
have 10 staff law clerks, including a 
general staff attorney. 

We have also used two or three 
other innovative ways to keep our 
docket current. We have a civil ap- 
peals mediation plan where our 
court attempts to bring the lav^ers 
together in order to try to settle 
cases before the briefing. These 
cases basically involve money judg- 
ments. We are generally successful 
in settling close to 100 cases a year 
through this process. This is equiva- 
lent to the work of one judge. 

Also, we have adopted a new pro- 
cedure which we call the expedited 
docket. Each month we have three 
panels hear approximately eight 
10-minute cases. These cases are 
preliminarily screened out as single- 
issue cases; they generally do not re- 
quire a full opinion. This has helped 
us process more cases. We also have 
assigned one of our deputy clerks to 
serve as an appeals expediter. The 
appeals expediter primarily manages 
a case the moment that it is filed; he 

works with the lawyers and the 
court reporter on the briefs and the 
transcripts and makes certain the 
cases move along at an expeditious 
rate. Where several parties are in- 
volved he attempts to avoid duplica- 
tion of briefs on common issues and 
attempts to consohdate briefs. This 
procedure has been a tremendous 
assistance to us. This also allows us 
to see that the cases are expedi- 
tiously processed from the notice of 
appeal to the time of submission. 
The lawyers are seldom given con- 
tinuances, the court reporters are 
not given continuances. It serves as 
an overall management program 
much like the district courts do un- 
der F.R.C.P. 16(b). In other words, 
the attorneys meet with the appeals 
expediter and decide what can be 
done to expedite the briefs and ex- 
pedite the appeal so that the case 
can be submitted at the earliest time 

We have tried one other approach 
that I think has proven very helpful. 
Our staff attorneys supervise all sec- 
tion 1983 cases and postconviction 
cases from the moment the notice of 
appeal is filed. They immediately 
obtain the district court record and 
determine on the basis of this record 
whether in their judgment the ap- 
peal, based upon what the district 
court has written, might possibly be 
frivolous. If they find any case along 
that line, it is submitted to a panel of 
judges, who then decide whether an 
order to show cause should be is- 
sued as to why the appeal should 
not be dismissed as frivolous. We 
are able to screen out a good many 
cases this way; however, we give 
the petitioner a full opportunity to 
address the issues that he feels are 
meritorious. We have a committee 
that is constantly working on new 
ideas as to how to maintain a cur- 
rent docket. We are proud of our 
record. At the end of our June 1984 
calendar we had only 15 pending 
cases that were fully briefed and 
ready for submission. I think it is es- 
sential for the federal courts to main- 
See LAY, page 6 


6 * 



LAY, from page 5 

tain an expeditious process. I am 
pleased to say that, notwithstanding 
the large increase, we have been 
able to do that in the Eighth Circuit. 

What time period do you set on 
disposition of a case after it has 
been heard by a panel? 

Well, we don't have any arbitrary 
limit, but we are all aware of the 
Administrative Office and the Judi- 
cial Conference requirement that we 
try to decide these cases within 90 
days. We can't do this in every 
case — some are going to take longer. 
Conversely, many of them take 
much less time, but we certainly 
strive for a 90-day ruling. I think we 
rank first or second in at least 
getting the case up for a hearing and 
then disposition. I think our appeals 
expediter helps a good deal in the 
front end of the appeal in getting the 
case ready. 

To what extent can you, as chief 
judge of the circuit, exert your in- 
fluence over the trial judges? For ex- 
ample, you have said that the opin- 
ions of the trial judge should be 
short; that the opinions should be 
based on "qualitative reasoning" 
but not "unnecessarily belabor the 
thought process" behind the reason- 
ing, leaving the precedent-setting to 
the appellate courts. As a practical 
matter, if a trial judge in your cir- 
cuit were to insist on long, ram- 
bling opinions, how can you get the 
word to the judge that opinions 
should be shorter? 

The district court workshops 
sponsored by the Federal Judicial 
Center stress the fundamentals of 
good craftsmanship and decision 
making. District judges are not the 
only ones who should be concerned 
about long opinions — circuit judges 
and, in all due respect, the justices 
of the Supreme Court should be as 
well. 1 certainly would not, as a chief 
judge, go directly to a judge and tell 
him his opinions are too long. 1 can 
understand that district judges are 
very sensitive towards their own in- 
dependence and that they don't like 

anyone telling them what to do. I 
think the best way to approach 
change is that when you see a prob- 
lem, particularly where you see a 
district judge is not getting his work 
out on time, is to go to that judge 
and say, "What can we do to help 
you? This is not in any way a criti- 
cism, but if there is a need for a tem- 

Center. Overall 1 think there is close 
comradery in our circuit, and we 
keep in pretty close touch with one 

Each of your districts has been 
developing "blueprints for judicial 
management." How is this work- 

Well, here again, it's just an idea 

"It is essential for the federal courts to maintain an ex- 
peditious process." 

porary law clerk, perhaps we can 
obtain one for you. Is there a need 
for an outside judge to come in and 
help you?" 

I have found that judges should 
be given every encouragement and 
every assistance, and if you approach 
problems in that way they are more 
easily solved. It's a learning process 
for all of us. One of my district 
judges once said to me that circuit 
judges are the natural enemy of the 
district court. I think this is unfortu- 
nate. Yet, it's human nature to want 
to be right. It takes application of 
human psychology to suggest new 
ideas. It's very difficult for older, 
experienced judges to learn new 
ideas. For example, when the new 
F.R.C.P. 16(b) relating to scheduling 
conferences was first debated, every 
district judge resented it as an intru- 
sion on their own procedures. Yet 
now, I think, through educational 
programs and the process of observ- 
ing other district judges conduct 
scheduling and management confer- 
ences, judges who earher opposed 
the rule are now saying, "Hey, this 
isn't a bad idea. I think I'll try it." 

How often do you meet with the 
trial judges in your circuit? 

Well, I have two meetings a year 
with our chief judges, and we have 
two meetings a year with the Judi- 
cial Council. In our circuit five dis- 
trict judges are on the council. We 
have the invaluable sentencing insti- 
tutes and the district court work- 
shops put on by the Federal Judicial 

to Hst as many innovative proce- 
dures that the district judges can ex- 
periment with to process the work 
expeditiously. For example, some 
district judges are trying to Umit 
their opinions to no more than 10 
pages and to limit the lav^ers' briefs 
in routine cases to no more than 10 
pages. This is a very flexible rule but 
many of our district judges have 
been doing this, and it's worked out 
very well. 

Other ideas have been that they 
try to consolidate motions for a pre- 
liminary injunction with a motion 
for a permanent injunction so that 
the whole issue is ripe for the court 
of appeals in one appeal. Another 
suggestion has been to enter an or- 
der to show cause why all three- 
year-old cases should not be dis- 
missed for the failure to further 
process the case. I have encouraged 
our districts to rule on all motions 
within 10 days. That's an idea that 
many of our district judges are try- 
ing out and finding successful. All 
district judges should try to expedite 
motions because lawyers continually 
complain that if a motion is held for 
any undue length of time by a dis- 
trict judge it can stall the whole liti- 
gation process. So it's just a matter 
of troubleshooting and hopefully 
getting all district judges to feel 
pride in what they are doing and to 
pursue to the end everything they 
can to improve the administration of 
justice. There is great comradery yet 
competitiveness among the districts 


to have the most current reports. 

Would you explain the formation 
and operation of the federal practice 
committees that serve your circuit? 
How do they function and what 
benefits are gained from their 

Although 1 have been on the court 
for almost 19 years, my best friends 
are still lawyers, and I have great 
empathy for the trial bar. For the ju- 
dicial process to be properly man- 
aged, the bar has to understand that 
they have a working responsibility 
to be a partner with the judiciary in 
helping to formulate rules and in 
helping to understand scheduling 
problems. There is a mutual reaction 
here. In other words, the judiciary 
must also understand the needs and 
problems of lawyers. About three 
V'ears ago we formed what we call 
federal practice committees of 15 to 
20 people in each district. We tried 
to have a cross-sectional representa- 
tion on these committees — young 
lawyers, old lawyers, plaintiff law- 
yers, members of minority groups, 
defense lawyers, criminal defense 
lawyers, prosecutors, public defend- 
ers, and United States attorneys. We 

"The bar has to under- 
stand that they have . . . 
to be a partner with the 

ilso bring in one or two of the deans 
)r faculty members of law schools, 
rhese people meet twice a year, 
rhey are funded through our law- 
yers' fund, which the court main- 
ains. They talk over ideas with the 
listrict judges, they develop new 
■ules, and from these committees 
ve draw upon them for our Federal 
Advisory Committee, which func- 
ions for the circuit. 

One of the things each Federal 
'ractice Committee is doing now is 
stablishing a historical society 
k'ithin each district. Lawyers are 

given a forum for the first time to 
talk to judges about problems within 
the districts, i.e. scheduling prob- 
lems, rules, and so forth. Before 
these committees were organized, a 
lawyer was reluctant to go in and 
talk to a judge about such matters. 
He couldn't communicate with the 
judge, and so we've tried to break 
down that barrier. 1 think it's 
worked very successfully. Each Fed- 
eral Practice Committee tries to put a 
seminar on within their district once 
a year on federal practice. This com- 
plements the Chief Justice's concern 
to train competent, federal lawyers 

ively discriminating within the bar. 
Is there any area of the law that 
you feel has lagged behind the 
needs of our society? 

Yes, and 1 feel very strongly about 
this. As a nation we do not exercise 
the proper judgment and wisdom in 
our system of penology. 1 know this 
is a favorite subject of the Chief Jus- 
tice, and it's been a private interest 
of mine for many years. We afford 
every process that is due to people 
charged with crimes in this country, 
but once they are sentenced we 
more or less shut the door and for- 
get about them. Our treatment of 

"Most of our treatment of prisoners 


with an educational process avail- 
able to the whole bar. This ties in as 
well with the fact that in the Eighth 
Circuit our judicial conferences are 
open conferences. Any lawyer who 
is an active federal practitioner is in- 
vited to come to our conferences. 
Our conferences have grown from 
about 100 people up to about 600. 
They are informational conferences, 
and they all participate. We have 
one whole afternoon when all regis- 
trants participate with the federal 
practice committees and visit with 
the judges and discuss problems 
within the district. 

How do you decide who may at- 
tend your judicial conferences? 

We try to turn the registration 
over to the federal practice commit- 
tees. But our rule is that any lawyer 
who wants to come can come. 
We've really had no problems. We 
were worried that it was going to 
mushroom on us and get too large. 
However, we haven't had that prob- 
lem. We're large, but 1 think every- 
body has a good and great learning 
experience. We have done away 
with invitations. If any lawyers want 
to be on the mailing list, they receive 
the registration material. In this way 
we avoid the reputation of select- 

prisoners in the state and federal 
system, in my judgment, remains 
barbaric. We defeat our very pur- 
pose in sending people to prison. 
It's probably an old cliche, but 
there's no question about it, when a 
person is put into prison we really 
go through a process of dehuman- 
ization. We treat them as numbers. 
We afford prisoners few rights and 
we, in effect, "breed crime" in our 
prisons. 1 think the figures show 
that in our state systems it costs 
about $11,000 a year to maintain a 
state prisoner; 1 think it's close to 
$15,000 to $16,000 a year in our fed- 
eral prisons. Society must be con- 
vinced that our treatment of prison- 
ers must change. The public has to 
be convinced because they're the 
ones that can influence the 

Instead of treating prisoners like 
animals, removed from society, we 
should be developing some type of a 
community treatment program 
where we work with individuals in a 
way that will help restore their self- 
respect and provide vital work for 
them in a community. This can be 
done, and it can be done very easily. 
Some day our prisons will be dis- 
See LAY, page 10 



The Source 

The publications listed below may be of in- 
terest to The Third Branch readers. Only 
those preceded by a checkmark are available 
through the Center. When ordering copies, 
please refer to the document's author and title 
or other description. Requests should be in 
writing, accompanied by a self-addressed, 
gummed mailing label, preferably franked 
(but do not send an envelope), and addressed 
to Federal Judicial Center, Information Serv- 
ices, 1520 H Street, N.W., Washington, DC 

1^ American Bar Association, Judi- 
cial Administration Division. "The 
Bicentennial of the United States 
Constitution — an International Com- 
parison of the Role of the Judiciary." 
American Bar Association (1985). 

Currie, David P. "The Constitu- 
tion in the Supreme Court: Limita- 
tions on State Power 1865-1873." 51 
University of Chicago Law Review 329 

Eshleman, Dirk E. "Pro Se Ap- 
peals in the Fifth Circuit: The Grad- 
ual Demise of the Notice Exception 
to Federal Rule of Appellate Proce- 
dure 4(a) and an Argument for Its 
Resurrection." 4 The Review of Litiga- 
tion 71 (1984). 

Fullerton, Maryellen. "Constitu- 
tional Limits on Nationwide Per- 
sonal Jurisdiction in the Federal 
Courts." 79 Northwestern University 
Law Review 1 (1984). 

Gibbons, John J. "Federal Law 
and the State Courts 1790-1860." 36 
Rutgers Law Review 399 (1984). 

Ginsberg, Ruth Bader. "The Work 
of Professor Allan Delker Vestal." 70 
Iowa Law Review 13 (1984). 

Gordon, Nicole A., and Douglas 
Gross. "Justiciability of Federal 
Claims in State Court." 59 Notre 
Dame Law Review 1145 (1984). 

Henry, James F. "Mini-Trials: An 
Alternative to Litigation." 1 Negotia- 
tion journal 13 (1985). 

Hunter, James, III. "Judge Collins 
J. Seitz." 70 Virginia Law Review 1547 

Jenkins, John A. "The Partisan: A 

Talk with Justice Rehnquist." New 
York Times Magazine, p. 28, Mar. 3, 

Kaiser, D. Nolan. "Juries, Blind- 
ness and the Juror Function." 60 
Chicago Kent Law Review 191 (1984). 

Kennedy, Edward M. "The Sen- 
tencing Reform Act of 1984." 32 Fed- 
eral Bar News & Journal 62 (1985). 

Komesar, Neil K. "Taking Institu- 
tions Seriously: Introduction to a 
Strategy for Constitutional Analy- 
sis." 51 University of Chicago Law Re- 
view 366 (1984). 

LaFave, Wayne R. "'Seizures' Ty- 
pology: Classifying Detentions of the 
Person to Resolve Warrant, Grounds 
and Search Issues." 17 Journal of Law 
Reform 417 (1984). 

Lay, Donald P. "Zen and the Art 
of Trial Lawyering." 19 International 
Society of Barristers Quarterly 287 

Levin, A. Leo. "Collins J. Seitz: 
Creative Judicial Administrator." 70 
Virginia Law Review 1551 (1984). 

McCarthy, Coleman. "The Year of 
the Executioner." Washington Post, 
Jan. 26, 1985, reprinted in Congres- 
sional Record Jan. 31, 1985, p. S879. 

Mikva, Abner. "What's Good 
About Lawyers." 9 District Lawyer 18 
(November 1984). 

Nader, Laura. "A User Theory of 
Law." 38 Southwestern Law Journal 
951 (1984) (Fourth annual Alfred P. 
Murrah Lecture). 

Newman, Jon O. "Rethinking 
Fairness: Perspectives on the Litiga- 
tion Process." 40 Record of the Associ- 


Apr. 1-3 Sentencing Institute for the 
Fifth and Seventh Circuits 

Apr. 1-3 Workshop for Fiscal Clerks 
of Circuit, District, and Bank- 
ruptcy Courts 

Apr. 8-10 Workshop for Appellate 
Court Case Management 

Apr. 10-12 Seminar for Federal 
Public and Community 

Apr. 15-17 Workshop for Clerks of 

alion of the Bar of the City of New York 
12 (1985). 

Olson, Susan M. "Challenges to 
the Gatekeeper: The Debate Over 
Federal Litigating Authority." 68 Ju- 
dicature 70 (August 1984). 

Poulin, Anne Bowen. "Evidentiary 
Use of Silence and the Constitu- 
tional Privilege Against Self- 
incrimination." 52 George Washington 
Law Review 191 (1984). 

Rodino, Peter W., Jr. "New Help 
for Crime Victims." 32 Federal Bar 
News & Journal 88 (1985). 

Schlueter, David A. "Judicial Fed- 
eralism and Supreme Court Review 
of State Court Decisions: A Sensible 
Balance Emerges." 59 Notre Dame 
Law Review 1079 (1984). 

Van Dusen, Francis L. "Com- 
ments on the Volume of Litigation in 
the Federal Courts." 8 Delaware Jour- 
nal of Corporate Law 435 (1984). 

Weinstein, Jack B. "Justice and 
Mercy — Law and Equity." 28 New 
York Law School Law Review 817 

Welsh, Robert C. "Reconsidering 
the Constitutional Relationship Be- 
tween State and Federal Courts: A 
Critique of Michigan v. Long." 59 
Notre Dame Law Review 1118 (1984). 

Wisdom, John Minor. "A Federal 
Judge in the Deep South: Random 
Observations." 35 South Carolina Law 
Review 503 (1984). 

Wright, J. Skelly. "In Praise of 
State Courts: Confessions of a Fed- 
eral Judge." 11 Hastings Constitutional 
Law Quarterly 165 (1984). 

Circuit Courts 

Apr. 17-19 Seminar for Bankruptcy 

Apr. 17-19 Workshop for Training 

Apr. 22-24 Workshop for Estate Ad- 
ministrators of Bankruptcy 

Apr. 23-26 Video Seminar for Newly 

Appointed Magistrates 
Apr. 24-26 Pretrial Services Officer 

Apr. 28-May 1 Seminar for Newly 

Appointed Federal Appellate 



Interpreter Exam Set 

Written examinations for 
Spanish/English interpreters will 
be given in 36 cities in June. Those 
who pass the test, and an oral ex- 
amination, will be placed on a cer- 
tified list from which full-time in- 
terpreters are selected. The salary 
for full-time interpreters is $24,011 
to $34,292. Free-lance certified in- 
terpreters earn $175 a day. 

Applicants should apply by 
April 26 to Dr. Roseann Duenas 
Gonzalez, Director, Federal Court 
Interpreters Certification Project, 
College of Arts and Sciences, Mod- 
ern Language Building, University 
of Arizona, Tucson, AZ 85721, 
enclosing a $25 application fee and 
requesting one of the available 
sites for the written and oral exam- 
inations. The application letter 
should include date of birth and 
Social Security number. 

The written examinations will be 
given on June 1 in Albuquerque, 
Atlanta, Baltimore, Boston, 
Brownsville, Tex., Chicago, Cor- 
pus Christi, Tex., Dallas, Fort 
Worth, Fresno, Cal., Hartford, 
Houston, Laredo, Tex., Las Cru- 
ces, N.M., Las Vegas, Los An- 
geles, Miami, Monterey, Cal., 
Newark, N.J., New Orleans, New 
York, Orlando, Fla., Phoenix, 
Reno, Sacramento, Salt Lake City, 
San Antonio, Tex., San Diego, San 
Francisco, San Juan, P.R., Santa 
Fe, Seattle, Trenton, Tucson, 
Washington, D.C., and West Palm 
Beach, Fla. The oral test will be 
given in August and September in 
Albuquerque, Atlanta, Boston, 
Chicago, Houston, Los Angeles, 
Miami, New Orleans, New York, 
Phoenix, San Francisco, San Juan, 
and Washington, D.C. 

Courts' Workload Rises Again, AO Reports 

lava jo Glossary Available 

An English/Navajo legal glossary 
is been published by the U.S. Dis- 
ict Court for the District of New 
[exico. Court clerk Jesse Casaus 
lid it might be useful in more than 
dozen federal, state, and tribal 
•urts. For copies, w^rite Mr. Casaus, 
3x 689, Albuquerque, NM 87103. 

The workload of the circuit and 
district courts grew again in the lat- 
est statistical year, an Administrative 
Office of the U.S. Courts study has 

The report, prepared by the AO's 
Statistical Analysis and Reports Divi- 
sion, covers the 12-month period 
that ended last September. 

Highlights of the summary 

• The number of appeals docketed 
by the 12 circuit courts increased 6.5 
percent, while the number of dispo- 
sitions was up 4.6 percent. The 
largest increase in filings — 16.7 
percent — was in the Eleventh Cir- 
cuit. The Seventh Circuit had the 
largest drop in filings, which were 
down 2.8 percent. The Eighth Cir- 
cuit had the largest increase in dis- 
positions, at 17.7 percent, while the 
Ninth Circuit had the largest drop, 
at 3.5 percent. 

• The U.S. Court of Appeals for 
the Federal Circuit, for which sepa- 

rate figures are kept, had a 38.5 per- 
cent increase in appeals filed. How- 
ever, the court terminated 66.8 
percent more appeals. 

• The district courts kept nearly 
even in handling an increased civil 
caseload. Those courts received 3.6 
percent more cases in the period 
surveyed and disposed of 3.5 per- 
cent more. The Eastern District of 
Wisconsin had the largest jump in 
filings, up 36.1 percent. The District 
for the Northern Mariana Islands 
had a 56.5 percent drop in filings. 
The largest drop among mainland 
districts was the 18.6 percent de- 
crease in the Western District of 
North Carolina. The Eastern District 
of California led the increase in ter- 
minations, up 69.2 percent, while 
the Western District of Wisconsin 
fared worst, with 23.8 percent fewer 

• Criminal cases filed in the dis- 
trict courts were up 6.9 percent. Ter- 
minations rose 1.1 percent. ■ 



Frank H. Easterbrook, U.S. Circuit 

Judge, 7th Cir., Feb. 25 
James F. Holderman, Jr., U.S. Dis- 
trict Judge, N.D. III., Feb. 25 
Thomas J. Aquilino, Jr., Judge, U.S. 

Court of International Trade, 

Feb. 25 
Melvin T. Brunetti, U.S. Circuit 

Judge, 9th Cir., Feb. 26 
Howell Cobb, U.S. District Judge, 

E.D. Tex., Feb. 26 
R. Allan Edgar, U.S. District Judge, 

E.D. Tenn., Feb. 26 
Edith H. Jones, U.S. Circuit Judge, 

5th Cir., Feb. 27 
George La Plata, U.S. District Judge, 

E.D. Mich., Feb. 27 
Ronald E. Meredith, U.S. District 

Judge, W.D. Ky., Feb. 27 
Alice M. Batchelder, U.S. District 

Judge, N.D. 111., Feb. 28 

Joseph H. Rodriguez, U.S. District 

Judge, D.N.J., Feb. 28 
Herman J. Weber, U.S. District 

Judge, S.D. Ohio, Feb. 28 
Carol Los Mansmann, U.S. Circuit 

Judge, 3d Cir., Mar. 7 
Carolyn R. Dimmick, U.S. District 

Judge, W.D. Wash., Mar. 7 
J. Thomas Green, U.S. District 

Judge, D. Utah, Mar. 7 
Ann C. Williams, U.S. District 

Judge, N.D. 111., Mar. 13 


Donald E. O'Brien, Chief Judge, 
N.D. Iowa, Feb. 9 

Senior Status 

Woodrow Wilson Jones, U.S. Dis- 
trict Judge, W.D.N. C, Feb. 1 

Edward J. McManus, U.S. District 
Judge, N.D. Iowa, Feb. 9 

Bruce M. Van Sickle, U.S. District 
Judge, D.N.D., Feb. 28 


Frank A. Hooper, U.S. District 
Judge, N.D. Ga., Feb. 11 




United States and Italy 
Cooperate on Crime 

New methods of cooperation be- 
tween the United States and Italy 
to combat organized crime and 
narcotics dealings were announced 
recently by former attorney gen- 
eral William French Smith. The 
agreements followed a two-day 
meeting of the Italian-American 
Working Group on Organized 
Crime and Narcotics Trafficking in 
Rome last January. The two na- 
tions' joint efforts include a plan to 
provide each other with more ac- 
cess to their computerized crime 
data and plans to make extradition 
between the two nations easier. 

LAY, from page 7 

mantled, with the exception of 
maintaining isolation for those peo- 
ple who are violent. I have talked to 
many wardens. I have visited many 
state prisons across the country. It's 
amazing how many wardens agree 
with me that only about 6 to 8 per- 
cent of the people now in prison re- 
ally need to be locked up. These are 
the violent prisoners. These are the 
people who use weapons to commit 
crimes and put other people's lives 
in jeopardy. But we can take the 
vast majority of prisoners and put 
them in community treatment cen- 
ters with some kind of industrial 
training and let them learn vocations 
and provide them with responsibili- 

ties and a renewed self-respect. 
There will always be an understand- 
ing that if there is a violation or an 
attempt to escape they will have to 
go into a prison. This is a civilized 
approach. What we do today is so 
self-defeating. I think every time I 
go through a prison I wonder how 
we can ever persuade the public of 
this tremendous waste of money 
and personal resources. I think some 
day changes will be made, but as 
long as legislatures react to public 
hysteria, politics will probably pre- 
vent it. We'll continue to do what 
we're doing now — building bigger 
prisons and placing more people in 
them. This doesn't rehabilitate any- 
one. H 




Vol. 17 No. 4 April 1985 

The Federal Judicial Center 
Dolley Madison House 
1520 H Street, N.W. 
Washington, DC 20005 

Official Business 


OB'jQb G 000515 1 



Postage and 

fees paid 

United States 








MAY 1985 

Interest in Activities of State-Federal Judicial Councils Increases 

Recent reports from several state 
federal judicial councils, whose for- 
mation is strongly supported by 
Chief justice Burger, show that 
interest in the councils continues to 

The agendas for council meetings 
vary, depending on the needs of the 
jurisdictions, but educational pro- 
grams are increasingly being held in 
:onjunction with the meetings. 
These programs help create better 
jnderstanding between state and 
federal judges, especially in the areas 
jf habeas corpus cases and postc 
/iction relief. They have b, 
sorted by the Federal J 


through arrangements with an 
authority on these subjects. 

The following are recent actions 
taken by various councils: 

• In January, Alabama state appel- 
late and trial judges met jointly with 
every federal judge and magistrate 
from Alabama. Eleventh Circuit 
Chief Judge John C. Godbold, com- 
menting on the meeting, said: 
"Twenty years ago, many state and 
federal judges were sharing hostili- 
ties; today they are sharing ideas^d 
^^ig from each other. i^^S^are 
'ting a lot of candl^ W:h 

KSvVe aretVAVsu- 

Villiam E. Fole y 

ave bfi^siV- ^^J{ms the darkngjrt^e are ^Wu- 
udilisPCenteix (^ji^lrtie ends of ^ce, wh^KSs what 

^^^^ ' .^ ^^^^-^ 

\illiam h. Fole y \^^' ^,> ^^ ^^^ 

Retiring Administrativ^ffice Director Rejects 
3n His 40 Years of Government Service 

William E. Foley, the director of the 
dminisir alive Office for more than eight 
'ars, announced his retirement earlier this 
ar. His legal career began after his gradua- 
m from Harvard Law School in 1935. He 
so holds undergraduate, master's, and doc- 
ral degrees from Harvard. 

In an interview with The Third Branch 
nducted after he announced his retirement, 
tr. Foley spoke about his 20 years at the A O 
id 20 years in other government service — as 
kderal prosecutor and with the Navy during 
hrld War U. 

You've had a distinguished career 
I government service spanning a 
;riod of over four decades in two 
■anches of the government — 
:ecutive and judicial. Let's start 
ith your Navy career. You were in 
le Office of Naval Intelligence? 
Yes, 1 was; first in Washington and 
en in the Eleventh Navaf District in 
in Diego. In the summer of 1944 I 
as transferred to the Office of the 
aval Attache in London and 
signed to a special unit, which was 
signed to become the staff of the 
mmander of U.S. forces in Ger- 
any when occupation of Germany 
Js to begin. 1 served as deputy chief 

Willinm E. Foley 

of staff for Intelligence when we 
moved to Germany in the summer of 
1945 and was discharged in the 
spring of 1946, at which time I 
received the commendation with rib- 
bon from the commander of the U.S. 
naval forces in Europe. I went out 
with the rank of lieutenant com- 
mander and remained active in the 
Naval Reserve until I retired with the 
rank of captain in the 1960s. 

In addition, I ran a sort of training 

school for the Command in Ger- 

See FOLEY, page 4 

our jobs are all about." 

"Our joint discussions of habeas 
corpus and other issues have pointed 
out that federal and state judges not 
only share common problems," said 
Alabama Supreme Court Chief Jus- 
tice C.C. Torbert, Jr., "but we have a 
mutual goal— that of enforcing and 
upholding the United States 

• In Florida, Judge Paul H. Roney 
of the Eleventh Circuit addressed a 
group of Florida state appellate 
judges recently and illustrated his 
remarks with Center videotapes, 
which were later available to the 
judges for replays. Although many 
state-federal subjects were covered, 
the emphasis was on the collegiality 
aspects of a multijudge appellate 

• State-federal judicial council 
meetings in Georgia, North Carolina, 
and Louisiana were especially con- 
cerned with habeas corpus proceed- 
ings. In Louisiana, a new procedure 
adopted by State Court Administra- 
tor Eugene Murret periodically 
brings to the attention of state judges 
the names and dispositions of all 
cases filed in federal court. Because 
capital cases have been of particular 
concern in Louisiana, judges there 
are made aware of how few of these 
cases are actually granted review in 
the federal courts. 

• Texas Chief Justice John L. Hill, 
with some suggestions for agenda 
items from Chief Judge William Ses- 
sions of theU.S. District Court in San 
See COUNCILS, page 2 

Inside . . . 

Prisoner Employment 
Projects Pushed p. 3 

Historical Societies' 

Activities Increase p. 3 


Study Published p. 7 




New grants:The National Institute 
for Dispute Resolution has awarded 
16 more grants to law schools to help 
finance courses in alternative dispute 

Grants to graduate business, plan- 
ning, public administration, and pub- 
lic policy programs are expected later 
this year. The institute has, in recent 
years, made 34 grants to law schools 
to foster education about alternatives 
to litigation. 

* * * 

New law: The Southern District of 
New York's district executive and the 
court's Criminal Justice Act Panel are 
cosponsoring a minicourse about the 
Comprehensive Crime Control Act 
of 1984. The five-session course is 
being offered Tuesday evenings at 
5:45 p.m. at the Court of Interna- 
tional Trade, 1 Federal Plaza, New 
York City. The first session was held 
April 23 and featured a Center- 
produced videotape about the new 
legislation, first shown via a nation- 
wide satellite hookup in January. The 
course is open to attorneys interested 
in applying for membership on the 
Criminal Justice Act Panel. 
* * * 

New manual: A draft of the second 
edition of the Mnnunl for Complex Litign- 
Hon has been circulated for review to 
attorneys and the judiciary by the 
manual's board of editors. 

See NOTEWORTHY, page 3 

COUNCILS, from page 1 

Antonio, is weighing the creation of a 
federal-state council. Replying 
enthusiastically to the idea, state Dis- 
trict Judge Joe E. Kelly said, "it can 
only improve a judge's ability in han- 
dling some simple daily duties which 
often develop on the problems. The 
subjects . . . are current although 
some had their genesis with King 

• After a hiatus of 10 years, the 
New York state-federal judicial coun- 
cil has been reactivated, partly 
because of interest in new 
approaches to old problems. More 
than a year ago, state and federal 
judges held an unprecedented gath- 
ering at Pace University in New York 
City, highlighted by vigorous discus- 
sions on mutual problems. The 




Published monthly by the Administrative 
Office of the U.S. Courts and the Federal judi- 
cial Center. Inquiries or changes of address 
should be directed to 1520 H Street, N.W., 
Washington, DC 20005. 


Alice L. O'Donnell, Director, Division of Inter- 
judicial Affairs and Information Services, Fed- 
eral ludicial Center. Joseph F. Spaniol, |r., Act- 
ing Director, Administrative Office, U.S. 

emphasis was on habeas corpus 
procedures, certification of state law i 
issues, and calendar conflicts. To J 
their surprise, the participants 
found— through reports based on a 
study made by two council members 
(one state and one federal)— that con- 
flict problems are rare. The New 
York council has taken the position 
that a procedural rule should be 
adopted by the U.S. Court of Appeals 
for the Second Circuit if a certifica- 
tion procedure is established. Chief 
Judge Jack B. Weinstein, of the East- 
ern District of New York, at one time 
suggested that this would be helpful 
in instances such as those encoun- 
tered in the Agent Orange cases, 
where a state statute-of-limitations 
question was "potentially determina- 
tive of as many as 10,000 cases." ■ 

The Source 

The puhlicniions listed below may he of interest 
to The Third Branch renders. Only those pre- 
ceded hy a checkmark are available through the 
Center. When ordering copies, please refer to the 
document's author and title or other description. 
Requests should he in writing, accompanied by a 
self-addressed, gummed mailing label, preferably 
franked (but do not send an envelope), and addressed 
to Federal judicial Center, Information Services, 
1 520 H Street. N.W.,Washington, DC 20005. 

American Civil Liberties Union. 
"The Rights of Crime Victims." 1985. 

Anderson, John R., and Paul L. 
Woodward. "Victim and Witness 
Assistance: New State Laws and the 
System's Responses." 68 judicature 
111 (1984). 

"Dedication to Justice Harry A. 
Blackmun on the Occassion of His 
Twenty-Fifth Year as a Federal 
Judge." Authors include Richard S. 
Arnold, Floyd R. Gibson, and Donald 
P. Lay. 8 Hamline Law Review 1 (1985). 

Eastern District of Pennsylvania, 
Continuing Legal Education Commit- 
tee. "Government Litigation: A 
Seminar on Litigation Against the 
Federal, State and Local Govern- 

ments in the United States District 
Court for the Eastern District of 
Pennsylvania." 1985. 

Kaufman, Irving R. "To Keep Law- 
yers from Going Wrong." New York 
Times, Mar. 26, 1985, p. A27. 

McGowan, Carl, Louis H. PoUak, 
John Minor Wisdom, and others. "In 
Honor of Henry J. Friendly, Jr." 133 
University of Pennsylvania Law Review 1 

Nelson, Dorothy W. "Alternative 
Dispute Resolution: A Supermart for 
Law Reform." 14 New Mexico Law 
Review 1 (1984). 

VNewman, Jon O. "Rethinking 
Fairness: Perspectives on the Litiga- 
tion Process" (The Cardozo Lecture). 
40 Record of the Association of the Bar of the 
City of New York 12 (1985). (Also avail- 
able on loan in audiotape from the 
Center's Media Library. Request AG- 

Roberts, Samuel J. "The Adequate 
and Independent State Ground: 
Some Practical Considerations." 17 
Institute of judicial Administration Report 1 
(Winter 1985). 

Schwarzer, William W. "Sanctions 
Under the New Federal Rule 11— A 
Closer Look." 104 F.R.D. 181 (1985). 

Supreme Court Historical Society. 
1Q84 Annual Report. 


Center Established 

To Help Promote 

Inmate Employment 

George Washington University 
has formed a National Center for 
Innovation in Corrections to pro- 
mote efforts to employ prison 
inmates in meaningful jobs. 

The center's formation is one of 
several steps taken since George 
Washington and the Brookings 
Institution sponsored a conference 
on prisoner employment last year. 
Chief Justice Burger, who is a major 
proponent of employment as a 
means of rehabilitation and as a tool 
to provide job skills inmates can use 
upon release, addressed the 

The steps taken to promote pri- 
soner employment since then 

• Appointment of Dr. |udith 
Schloegel to head the National Cen- 
ter for Innovation in Corrections. 

• Recommendation of 111 steps 
that can be taken by corporate exec- 
utives, union leaders, prison admin- 
istrators, and public officials to 
foster productive employment by 
prison inmates — a concept known 
as "factories with fences." 

The recommendations came 
from 39 people appointed to a 
national task force on prison indus- 
tries, which met at the Wingspread 
Center in Racine, Wis., last 

The task force is chaired by Frank 
Considine, president of National 
Can Corp. Its honorary chairman is 
the Chief justice. 

E.D. Pa. Historical Society Holds First Sessions- 
Eighth, Ninth Circuits Forming Similar Groups 

Juote Without Comment 

"[Tjhe main complaint against the dual 
iry was its novelty. . . . (and) 'the risk of 
ijecting uncertainty and confusion into 
>e proceedings'. . . . That the dual jury 
'ocess increases these risks is beyond 
spute. We do not believe, however, that 
le spectre of such risks should deter 
)urts from implementing innovative 
•source-saving procedures in carefully 
■lected cases so long as these procedures 
e administered carefully and meet the 
quirements of due process." 

United Stntes v. Lewis 
(D.C. Cir. 1983) 

The first annual meeting of the 
Eastern District of Pennsylvania's 
Historical Society was held last 
month, with Chief Judge Alfred L. 
Luongo delivering the keynote 

judge Luongo described the career 
of judge Francis Hopkinson, the first 
judge of the Philadelphia-based 
court, who was appointed by Presi- 
dent Washington in 1789. 

The session also featured excerpts 
of a videotaped oral history interview 
with Senior judge Albert B. Maris of 
the Third Circuit. The society, which 
was formed a year ago, has been 
recording the history of the court as 
described by judges who have served 
in it. Its goals are to promote public 
awareness of the court and to explain 
its functions and history to the 

The Eighth Circuit, at the sugges- 
tion of Chief Judge Donald P. Lay, is 
also in the process of forming a his- 
torical society to gather information 
about and promote interest in the 
history of the circuit and each of its 
10 districts. 

Discussion of the proposed histori- 
cal society began last year at the 
meeting of the Eighth Circuit Federal 
Advisory Committee. Similar efforts 
in other jurisdictions, notably in the 
Northern District of California and 
in the Second Circuit, are being used 

NOTEWORTHY, from page 2 

New commission: ABA President 
John C. Shepherd has announced the 
formation of a special commission 
with "a broad mandate to study 
issues affecting the professional per- 
formance of lawyers." The commis- 
sion will take an objective look at the 
criticisms that have been leveled 
against lawyers and jurists in a 
number of areas and attempt "to 
determine what validity there is in 
these allegations." 

Issues to be studied are lawyer 
advertising, cost of litigation to lit- 

as models; the society is to be incor- 
porated on a nonprofit basis. Plans 
call for the appointment of a 22- 
member board, including one judge 
and one lawyer from each district and 
two from the circuit at large. 

The society is considering several 
projects, including the gathering of 
materials for exhibits in the court- 
houses in St. Paul and St. Louis, 
where the Eighth Circuit sits; 
research into the history of the 
judges, lawyers, and decisions of the 
circuit and each of its districts; and, if 
time and funds permit, the publica- 
tion of some of the results of its 

Members of the board of directors 
representing the circuit at large will 
be Judge Richard S. Arnold of Little 
Rock and Robert C. Tucker of St. 
Louis, who was clerk of the court of 
appeals for the Eighth Circuit for 
many years. 

The Ninth Circuit is drawing up 
articles of incorporation for a circuit 
historical society. The Northern Dis- 
trict of California's historical society 
is already functioning, and the Dis- 
trict of Oregon and the Central Dis- 
trict of California are well along in 
the planning stage. 

The Seventh Circuit reports no 
plans for a historical society, but it is 
taping oral histories from its judges, 
beginning with the senior judges. ■ 

igants and the courts, lawyer compe- 
tence, commercialization of legal 
services, availability of legal services 
to low- and middle-income persons, 
and professional ethics and discipline. 
The commission will both identify 
problems and recommend solutions. 

Old inmates: The Justice Depart- 
ment's Bureau of justice Statistics 
has issued a report on a recidivism 
study that states that "almost 84 per- 
cent of the people entering state pri- 
sons during the period studied were 
repeat offenders." 


4 ^ 


FOLEY, from page 1 

many. In the beginning 1 was about 
the only German-speaking officer in 
the group. In addition, we ran a train- 
ing school in the Reserve work that 
we did here in Washington after the 

How many languages do you 


1 speak some French, but not flu- 
ently. I've studied Spanish, but Ger- 
man is the only language I can claim 
any fluency in. 

Did your career continue in the 
Department of Justice after the ter- 
mination of World War II or did it 
start then? 

Actually it started just before 1 
went into the Navy in 1940, which is 
the year 1 finished my graduate work. 
1 went from the Department of Jus- 
tice into the Navy, and then came 
back to the Department of Justice in 


Can you tell us anything about the 
cases you handled in the Criminal 

Well, the first cases I handled were 
on assignment from the Criminal 
Division to the Southern District of 
New York, and they were exclusively 
war frauds cases. None is of any great 
note today, but it was very good expe- 
rience for me. They afforded me good 
trial and appellate experience, even 
though we were unsuccessful in the 
major cases we tried. 

Was it common practice at that 
time to try to cheat on defense 

1 can't really say that. It's hard to 

How about the Judith Coplan case, 
in which you were involved? 

Well, that was a very unpleasant 
experience. She had been, to the best 
of my knowledge, a trusted 
employee. It is very disconcerting to 
find that you are actually dealing 
with somebody who is handing 
things over to the potential enemy. 
And, having to testify, as I did in both 
trials in Washington and New York, 
was not a very happy experience. 
The other cases 1 handled at that 

time were largely appearing before 
grand juries in matters relating to 
violations of the Foreign Agents Reg- 
istration Act. The only one I recall 
offhand involved the Amtorg Trad- 
ing Corporation. 

Then in 1950, I believe it was, the 
chief of the Internal Security and For- 
eign Agents Registration Section, 
Raymond Whearty, became the dep- 
uty assistant attorney general of the 
Criminal Division, and I succeeded 
him as chief of Internal Security and 
Foreign Agents Registration. In 1954 
Internal Security became a division of 
itself, and 1 became executive assis- 
tant to the assistant attorney general. 
In 1957 I was called back to the Crimi- 

I believe that's true. In 1964, in the 
entire federal court system, we had 
6,383 people. That includes judges, 
law clerks, court clerks, criers, and so 
forth. In mid-1984 that number grew 
to 16,677. 

In 1964 there were 378 judgeships 
in the federal court system, whereas 
today there are 168 judgeships for 
the courts of appeals and 576 district 
court judgeships. Counting senior 
judges who remain active, there are 
around 1,000 active judges in the fed- 
eral court system. How has this 
growth affected the work of the 
Administrative Office? 

The impact on the Administrative 
Office hit us in almost every branch 

"It has always been my ambition to try not to say 'no' if 
there's any way I can find to meet the wishes of the 
judges." ^_^ 

nal Division as first assistant. That 
title is now deputy assistant attorney 
general. I served in that capacity until 
I came into the Administrative Office 
in 1964. 

One thing I might add about my 
Criminal Division experience. In 
1953, when President Eisenhower 
came in, he reestablished or at least 
added new life to the National Secur- 
ity Council and used it very heavily. 
He had a very interesting head of the 
council or director, Robert Cutler, 
who ran the Planning Board of the 
council, and I was designated as the 
attorney general's representative on 
the Planning Board of the National 
Security Council, and that was for 
about three years. It was some of the 
most interesting work I've done. 

Your stint in the Administrative 
Office came next in 1964, when you 
became deputy director. The person- 
nel in the Administrative Office was 
much smaller then. 

Indeed it was. We had 177 people 
on the staff of the Administrative 
Office in 1964. In the middle of the 
year 1984, we had 533, and today we 
have approximately 600. 

It is the biggest court system in the 

of our work. There was impact on the 
Personnel Division, which keeps the 
records. There was heavy impact on 
our buildings and furnishings units, 
for example, when the large number 
of additional judgeships was added in 
the 1970s. We had anticipated the leg- 
islation, and our buildings unit had 
surveyed the potential impact on all 
the courts of the country for which 
new judgeships were being recom- 
mended. As a result we were as ready 
as we could be for the new judges 
when they were authorized and then 

For many years you were secretary 
of the Judicial Conference of the Uni- 
ted States. How does the Conference 
function today to develop policy? Do 
you feel that it is functioning as 
effectively as it can through commit- 
tees, committee reports, and two 
meetings a year? 

Well, the Conference is function- 
ing today pretty much along the same 
lines as it did when I joined the Con- 
ference in early 1965. You must 
understand that the Conference 
operates through the committee sys- 
tem just as the Congress does, and 
the committees meet periodically 
throughout the year, at least once 


before each meeting of the Confer- 
ence. Some committees hold special 
meetings, or they operate through 
subcommittees, which meet at inter- 
vals between the meetings. 

How many serve on the Executive 

The Executive Committee of the 
Conference has six members, 
appointed by the Chief justice to act 
For the Conference in matters that 
Teed to be taken care of between the 
•egular meetings of the Conference, 
rhe Conference also meets especially 
It the call of the Chief Justice. For 
jxample, when the Criminal Justice 
\ct was passed the Chief Justice 
reated a committee that studied the 
leeds of the judiciary to implement 
he act, and then the Conference was 
ailed into special session in January 
»f 1965 and took action to implement 
he work of the special conference 
ommittee. That, incidentally, was 
he first meeting I attended as secre- 
ary of the Conference, Jan. 8, 1965. 

Did you get called on much in your 
apacity as secretary of the 

Occasionally, not frequently. 

How do you react to the request for 
unshine in government and espe- 
ially requests by the press for open 
leetings of the Conference? 

1 think the Conference, if it held 
pen meetings, would be a lot less 
nccessful. The two Chief justices 1 
ave served under were strong 
elievers that the real work of the 

AO in 1977, you became the fifth 
individual to fill that position. Did 
you make any big changes that you 
felt were necessary to your 

Basically the organization of the 

"We had 177 people on 
the staff of the Adminis- 
trative Office in 1964. , . 
Today we have approxi- 
mately 600." 

Administrative Office remains the 
same, but some changes had to take 
place to meet the requirements of 
new legislation. For example, as dep- 
uty director 1 used to handle a good 
deal of the criminal justice work 
myself. Once federal public defend- 
ers were authorized, however, it 
became more than I could handle 
alone, and we set up a Criminal jus- 
tice Act Division. That is when I 
brought in James Macklin as head of 
that division. And since I've been 
director, he has been my executive 

As director of the AO, dealing 
with around 1,000 federal judges, 
you received many requests for more 
personnel, more courtrooms, more 
books, more equipment. Obviously 
there are times when you must say 
"no." How do you cope with these 
turndowns and the objections to the 

'We can't do for all the judges what we would like to do. 
. . You can't live beyond your budget." 

onference— the open exchange of 
ews among the members— would 
? inhibited by open meetings. They 
ight not speak as frankly on mat- 
rs that affect personnel of the 
lurts and problem areas that inevi- 
bly arise. That free, open exchange 
something that both the Chief Jus- 
res I have served were great believ- 
s in. 

When you became director of the 

Well, traditionally and humorously 
an administrator is known as the per- 
son who says "no." It has always been 
my ambition to try not to say "no" if 
there's any way I can find to meet the 
wishes of the judges. Obviously, the 
greatest limiting factor is funds— the 
budget— and particularly with expen- 
sive equipment such as much of the 
current automated equipment is. We 
can't do for all the judges what we 

would like to do. And this has caused 
many hard feelings, which 1 regret 
very much, but it just seems inevita- 
ble that you can't live beyond your 

Can you think of any instance, 
even if it is ancient history, in which 
you had to disagree with a judge on 
administrative matters that really 
led to some sort of confrontation? 

Not seriously so; we've had some 
unfortunate turndowns. For exam- 
ple, a judge may have his heart set on 
furnishing his chambers in a certain 
way, which goes beyond the guide- 
lines under which we operate and 
which have been approved by the 
Judicial Conference for what we may 
spend on office furniture. Many 
times new judges have not had an 
opportunity to familiarize them- 
selves with the work of the Judicial 
Conference and what the Judicial 
Conference means to the Adminis- 
trative Office. But you must 
remember that section 604 of title 28 
says the director of the Administra- 
tive Office shall operate under the 
policy guidance of the Judicial Con- 
ference of the United States. Those 
are pretty positive words. 

Did the Financial Disclosure Act 
give you any problems, especially 
when some of the judges failed to 
comply with filing requirements? 

It did not give the Administrative 
Office as such any problems. The 
administration of that act was vested 
in the Judicial Ethics Committee of 
the Judicial Conference, which has 
been chaired since its inception by 
Judge Edward Tamm, and whether 
Judge Tamm has had any problems, I 
cannot say. 

What is the total budget for the 
judicial branch for fiscal year 1985? 
The adjusted appropriation for fis- 
cal year 1985 is $1,121,680,000. This 
does not include the U.S. Supreme 

How much are you asking for in 

fiscal year 1986 to cover all the 

needs, including personnel, for the 

biggest court system in the world? 

We are asking for approximately 

See FOLEY, page 6 



FOLEY, from page 5 

$1,121,449,000; again, this does not 
include the Supreme Court. 

That represents less than 1 percent 
of the federal budget, doesn't it? 
Less than one-tenth of 1 percent. 
All right. And your office prepares 
the request to Congress for funds, 
which makes it possible for the fed- 
eral courts to operate. A couple of 
times in recent history the AO's 
budget was not yet fully approved 
before the start of the next fiscal 
year. This obviously presented some 
problems. How did you respond to 

In each instance there was a contin- 
uing joint resolution in the Congress 
permitting us to operate as we had 
under the prior budget. Now the 
budget process is for the Administra- 
tive Office to prepare the budget and 
then consult with the Budget Com- 
mittee of the Judicial Conference 
before submitting a final budget, 
which we do by transmittal to the 
Office of Management and Budget 
on Oct. 15 each year. You remember, 
too, that the budget cycle is a long 
one. We submit it on Oct. 15 for the 
fiscal year commencing the following 
Oct. 1. 

It's difficult to anticipate? 
It's very difficult to anticipate, 
especially if you have new buildings 
going up, or new legislation, 
although if new legislation comes 
through that requires a substantial 
addition to the budget, we may go to 
the Congress to ask for a supplemen- 
tal appropriation. 

You have a good relationship, I 
understand, with people in 

Well, we try to keep the commit- 
tees fully advised through their staff 
on what we're doing and what we 
hope to achieve in the future. 

What are some of your greatest 
problems today? 

Well, one difficult situation is the 
fact that our headquarters office here 
in Washington is separated into five 
different buildings. One of these 
buildings, which houses our printing 
plant and mailroom, is even outside 

the District of Columbia. It does not 
make for good administration to have 
your staff separated. 

Another problem is related to the 
demands of automation. Automation 
is very costly and yet very few judges 
appointed in recent years find our 
automation in any way comparable to 
what they were accustomed to in the 
private practice. They have become 
accustomed to certain types of auto- 
mation and expensive equipment, 
which sometimes we cannot give 
them, mainly because of the cost. 

Parking is another difficult situa- 
tion, not only for the judges but the 
staffs. Courthouses built 50 to 75 
years ago were often built in an excel- 
lent part of the city that over the 
years has deteriorated. Often these 
areas are not safe for judges and their 

Is security a big problem? 
The U.S. Marshals Service is han- 
dling security insofar as funds for 
personnel permit. Security generally 
has become a much more important 
subject in recent years, however, and 
at present, with all the drug-related 
offenses, we have very serious prob- 
lems. We have had threats against 
federal judges. Sometimes, the 
judges involved in incidents, and who 
are the subjects of serious threats, 
don't think we are doing an adequate 
job, but we are doing the best we can 
with what we have. Whenever a 
threat against a federal judge occurs, 
we send someone there immediately, 
as does the U.S. Marshals Service. 
They send a special individual there 
who is knowledgeable in planning 
and so forth. 

Some of the judges complain that 
they get splendid cooperation from 
the AG but then when the imple- 
mentation starts through the 
regional offices of GSA, they run 
into problems. Is one of the problems 
at GSA that it is just so big it is 
impossible to function effectively? 

Yes. You cannot treat a courthouse 
as you would an ordinary public 
office building utilized by those in the 
executive branch. You have to have 
courtroom space, you have to have 

security provisions to handle prison- 
ers as well as judges and their per- 
sonal staffs. I'm not sure GSA is 
always attuned to the needs of the 

We have a special building staff 
here, and it is ready at the drop of a 
hat to travel to try to meet the 
requirements and wishes of judges. 
And by and large 1 would say judges' 
requests are usually reasonable. 

What would you like to see 
accomplished for the federal courts 
in the immediate future and well 
beyond— the millennium for the fed- 
eral court system? 

That's a hard one to answer. But I 
would hope that we would become 
better able to handle the requests of 
the judges. It all gets back to money. I 
would hope that the day is not too far 
away, for example, when the Admin- 
istrative Office and the Federal Judi- 
cial Center would be together in one 
building. Also, it would probably save 
the government some money in the 
sense that we wouldn't need as many 
conference rooms as we do with 
separated and multiple housing. 

What do you look forward to doing 
in retirement that you haven't had 
time to do before because of the 
demands of your position? 

Well, for one thing, reading is 
something I enjoy very much and I 
have had very little extra energy to do 
this at night, especially when we've 
been in crisis situations. The theater 
is another. My wife and 1 both enjoy 
the theater. And even on vacations 
there hasn't been much free time. 
Last summer I spent two weeks in 
New Hampshire, and the minimum 
number of calls from the office each 
day was six. You're really never away 
from it. It follows you. 

And you will have more time to 
spend with your children. How many 
are in the Washington area now? 

Only three right now. 

Any of them lawyers? 

Two, and a third coming up. My 
daughter Ann and son Chris are law- 
yers, and my son Richard is still in law 
school. * 



Walter K. Stapleton, U.S. Circuit 

Judge, 3d Cir., Mar. 27 
Kenneth F. Ripple, U.S. Circuit Judge, 

7th Cir., Apr. 1 
Vlark L. Wolf, U.S. District Judge, D. 

Mass., Mar. 8 
/Villiam G. Young, U.S. District Judge, 

D. Mass., Mar. 8 
Iharles C. Lovell, U.S. District Judge, 

D. Mont., Mar. 27 


Kelvin T. Brunetti, U.S. Circuit 
Judge, 9th Cir., Apr. 3 

rank H. Easterbrook, U.S. Circuit 
Judge, 7th Cir., Apr. 3 

idith H. Jones, U.S. Circuit Judge, 5th 
Cir., Apr. 3 

laroi Los Mansmann, U.S. Circuit 



The Chief lustice 
of the United States 

ludge Daniel M. Friedman 

Ujufed States Court of Appeals 

for the federal Circuit 

ludge Arlin M. Adams 

Uniteii States Court of Appeals 

for the Third Circuit 

ludge Warren K. Urbom 

Uuited States District Court 

District of Nebraska 

Chief ludge Howard C. Bratton 

United States District Court 

District of New Mexico 

ludge A. David Mazzone 

United Stales District Court 

District of Massachusetts 

ludge Martin V.B. Bostetter, |r. 

United States Bankruptcy Court 

Eastern District of Virginia 

loseph F. Spaniol, |r.,Acting Director 

Administrative Office of the 

United States Court 

Federal judicial Center 

A. Leo Levin, Director 

Charles W. Nihan, Deputy Director 

judge, 3d Cir., Apr. 3 
Walter K. Stapleton, U.S. Circuit 

ludge, 3d Cir., Apr. 3 
Thomas J. Aquilino, Jr., Judge, U.S. 

Court of International Trade, 

Apr. 3 
Alice M. Batchelder, U.S. District 

Judge, N.D. 111., Apr. 3 
Howell Cobb, U.S. District Judge, 

E.D. Tex., Apr. 3 
Carolyn R. Dimmick, U.S. District 

Judge, D. Wash., Apr. 3 
J. Thomas Green, U.S. District Judge, 

D. Utah, Apr. 3 
James F. Holderman, Jr., U.S. District 

— 7 


Judge, N.D. 111., Apr. 3 
George La Plata, U.S. District Judge, 

E.D. Mich., Apr. 3 
Charles C. Lovell, U.S. District Judge, 

D. Mont., Apr. 3 
Ronald E. Meredith, U.S. District 

Judge, W.D. Ky., Apr. 3 
Herman J. Weber, U.S. District Judge, 

S.D. Ohio, Apr. 3 
Ann C. Williams, U.S. District Judge, 

N.D. 111., Apr. 3 
Mark L. Wolf, U.S. District Judge, D. 

Mass., Apr. 3 
William C. Young, U.S. District Judge, 

D. Mass., Apr. 3 

Center Publication Evaluates Use of Joint Calendar 

The Center has published The joint 
Trial Calendars in the Western District of 
Missouri, by Donna Stienstra of the 
Center's Research Division. Part of 
Innovations in the Courts: A Series on Court 
Administration, the report describes a 
calendaring system under which 
some noncomplex cases are periodi- 
cally placed on a joint calendar after 
the assigned judges have prepared 
them for trial. Those cases are then 
tried by the first available judge. 

Adopted 15 years ago in an attempt 
to guarantee firm trial dates for cer- 
tain cases, the joint trial calendar sys- 
tem helps clear the court's dockets at 

regular intervals. 

The report outlines the history and 
operation of this procedure, reviews 
its impact on judges, court personnel, 
attorneys, and the caseload, and 
offers guidelines for other courts 
weighing its adoption. Copies of the 
court's forms and documents are 
included in the appendixes. 

Copies of this report can be 
obtained from Information Services, 
1520 H St., N.W., Washington, DC 
20005. Enclose a self-addressed, 
gummed mailing label, preferably 
franked (but do not send an enve- 
lope). ■ 

Circuit Executive, U.S. Court of Appeals for the Dis- 
trict of Columbia Circuit. Salary up to $68,700, depend- 
ins on qu.ilifnations See 28 US C §332(e) and (f) for 
special qualifications and general functions. Required are 
undergraduate degree and extensive successful executive 
experience requiring application of full range of manage- 
ment principles and techniques Degree in lawor graduate 
degree m management/administration highly desirable. 
Position available Aug, 1 Send application by May IS to 
ludge Abner |. Mikva, US. Court of Appeals, U.S. Court- 
house, Washington, DC 20001 

Chief Staff Counsel, U.S. Court of Appeals for the 
District of Columbia Circuit. Salary up to $67,940 
Requires law degree, bar membership, and a minimum of 
five years of progressively responsible experience in the 
practice of law or legal administration Substantial litiga- 
tion experience is preferred Send application by May 1 S to 
ludge Patricia M. Wald, US. Court of Appeals, U.S. 
Courthouse, Washington, DC 20001. 

Positions Available 

and of civil cases upon consent of litigants Requires mem- 
bership in the bar of the Missouri Supreme Court and at 
least five years' law practice Applicants must be younger 
than 70 years old and not be related to a judge of the 
Western or Eastern Districts of Missouri. For an applica- 
tion form, write R.| Connor, Clerk, US District Court. 
Room 201, 811 Oand Ave., Kansas City, MO 64106. The 
deadline for applications is lune 28. 

District Executive, U.S. District Court for the Central 
District of California. Salary $59,233 to$68,700, depend- 
ing on experience. Requirements include a college degree 
and management experience. A degree in business or pub- 
lic administration or in law is desirable Resumes and 
cover letters should be submitted by May 17 to ludge 
Laughlin E Waters, US District Court, 312 North Spring 
St., Los Angeles, CA 90012. 

U.S. Magistrate, U.S. District Court for the Western 
District of Missouri (Jefferson City). Salary $68,400 
Responsible for conducting initial appearances in criminal 
cases, various pretrial matters, and evidentiary proceed- 
ings; and the trial and disposition of misdemeanor cases 


Chief Deputy Clerk, U.S. District Court for the East- 
ern District of Texas. Salary from $37,599 to $52,262, 
depending on qualifications Responsible for assisting the 
clerk of the court and managing the courts clerical and 
administrative operations. Send application by lune 3 to 
Murray L Harris, Clerk, US. District Court, 211 W. Fer- 
guson St , Room 309, Tyler, TX 75702 



* .'\ 










May 6-8 Civil Case Management 

May 7-10 Video Orientation Semi- 
nar for Newly Appointed Magis- 

May 12-14 Seventh Circuit judicial 

May 12-15 Eleventh Circuit Judicial 

May 14-18 Sixth Circuitjudicial Con- 

May 15-17 Workshop for Newly 

Appointed Training Coordina- 

May 16-21 Seminar for Senior Staff 

May 17 Federal Circuit judicial Con- 

May 19-21 D.C. Circuit judicial Con- 

May 19-22 Fifth Circuit judicial Con- 

May 20-22 Workshop for Fiscal 
Clerks of Circuit, District, and 
Bankruptcy Courts 

May 28-31 Ninth Circuit judicial 

May 29-31 judicial Conference Sub- 
committee on judicial Improve- 

lune 3-5 Workshop for Appellate 
Court Case Management 

June 4-5 judicial Conference Advi- 
sory Committee on Civil Rules 

June 5-7 Pretrial Service Officer 

June 6-7 judicial Conference Sub- 
committee on Supporting Per- 

June 6-7 judicial Conference Advi- 
sory Committee on Criminal 





Vol. 17 No. 5 May 1985 

The Federal Judicial Center 
Dolley Madison House 
1520 H Street, N.W. 
Washington, DC 20005 

Official Business 

Postage and 

fees paid 

United States 


US, COVERNMbNT PRINTINC OFFICF. 1985-360-909-(13) 



lUNE 1985 

Zhief Judge Cummings Praises Oral Argument, 
Urges More Active Judicial Conference Role 

Wnlter j. Cummings, chief judge of the 
leventh Circuit, has served oti that court since 
9bb. He is n grndunte of Yale University 
nd Harvard Law School and began his legal 
areer as a member of the solicitor general's 
\aff in 1940. In 1944, he became special 
ssistant to the attorney general, hi 1946. he 
eturned to his native Chicago and joined the 
rm that is now Sidley and Austin, leaving 
ir two years to serve as solicitor general from 
952 to 1953. 

Chief Judge Cummings serves on the judi- 
ial Conference and was chairman of its 
nmer Committee on Records Disposition. In 
his Third Branch interview, he discusses, 
mong other topics, the size of the Seventh 
'ircuit, the use of en banc decisions, and the 
sefulness of oral argument, and offers a plan 
1 which active circuit judges would tempo- 
irily sit with courts in other circuits. 

Geographically, your circuit is rel- 
tively compact, encompassing three 
^'erage-sized states. Does this have 
ny impact on your court, either 
ood or bad? ^ 

The compactness of the S^phth^ 
ircuit helps the court of appi^'ls an<^ 

Chief fudge Walter /. Cutnmings 
attorneys who practice in it, for Chi- 
cago is the center of transportation 
for this circuit as well as fairly close to 
the geographical center of the circuit. 
All threestates— Illinois, Indiana, and, 
Wisconsin — have a mix of agriculture- 
,;^d industry as well as metropolit^ri 
and rural areas. The relative sicallar- 
it^^f the states in the circuit fosters 
►#be cqllegial atmosphere shared by a'li^"^ 
v'inen^^Vs of the court of appeals. The 
' ^ See CUMMINGS, page 4 


teng Tianxiang, president of the Supreme 
ople's Court of the People's Republic of 
una, visited the FjC last month with three 
ter judges from China. Details on p. 3. 

BA Panel Recommends 
Higher Judicial Salaries 

Salaries for Article ill federal judges 
should be increased, an American Bar 
Association commission has recom- 
mended. The suggestion came from 
the ABA's Federal judicial Compen- 
sation Commission. 

Under the commission's pay for- 
mula, district judges would receive 
$99,600 a year and circuit court 
judges $105,600, a 31 percent in- 
crease; and associate justices 
$134,900 and the Chief justice 
$140,800, a 34 percent increase. 

The ABA's recommendations were 
presented to the federal Commission 
on Executive, Legislative, and Judicial 
Salaries in April. ■ 

New Legislation Allows 
Senior Judges to Serve 
On Sentencing Panel 

President Reagan has signed legis- 
lation allowing the appointment of 
senior judges to the U.S. Sentencing 

The legislation is an amendment to 
the Comprehensive Crime Control 
Act of 1984, which created the com- 
mission and provided that three 
active federal judges would be among 
its seven members. The act made no 
provision for replacing judges who 
left their courts to serve on the com- 
mission, so Congress added a provi- 
sion allowing senior judges to serve 
on the panel. 

Under provisions of the original 
legislation, which remain in effect, 
the Judicial Conference submits the 
;names of at least six judges to the 
president, who nominates three to 
serye. The Conference submitted its 
list' after the new legislation was 
, signed, and included senior judges on 

,^-The amended legislation also au- 
thorized the Administrative Office to 
request appropriation of initial funds 
for the commission, since the com- 
mission, not yet in existence, could 
not make a request on its own. The 
AO requested $2,350,000. 

The sentencing commission's main 
task will be to set a narrow range of 
sentences for given crimes. Judges 
who depart from those sentences will 
have to explain why, and appeals of 
sentences above or below the guide- 
lines' ranges will be allowed. ■ 

Inside. . . 

New AIMS Program 
Previewed in Richmond. . . 



Chief Justice 

Addresses Publishers 



Chief ludge Clark Opposes 
Proposed Budget Cut 




Three-Day Conference on Court Automation Focuses on New AIMS System 

the success of the automated system. 
"In the past, responsibility for auto- 
mated systems was transferred from 
the Center to the Administrative 
Office. Now, in an important sense, 
much responsibility also transfers to 
the courts themselves. We welcome 
that responsibility." 

One of the session's highlights was 
a demonstration of New AIMS by 
Robert Hoecker, chief deputy clerk of 
the Tenth Circuit and a key contribu- 
tor to the specification of the sys- 
tem's capabilities. "New AIMS can be 
as simple or as complex as each court 
requires," Mr. Hoecker said. "It will 
revolutionize how we manage the 
courts' business." ■ 

More than 20 representatives of 
the courts of appeals joined Adminis- 
trative Office and Center staff as 
guests of the Fourth Circuit for a 
three-day meeting in Richmond this 
spring to discuss the status and 
future of the Center's New Appellate 
Information Management System 
(New AIMS). 

New AIMS is an electronic docket- 
ing and case management reporting 
system that helps courts in calendar- 
ing, panel formation, statistical 
reporting, and other administrative 
tasks. The Fourth, Ninth, and Tenth 
Circuits have served as pilot courts 
for the system and are nearing the 
completion of testing its functions. 

Sixth Circuit Clerk of Court |ohn 
Hehman, chairman of the group that 
met in Richmond in late April, said, 
"New AIMS defines a frontier in 
appellate-court automation and is a 
model for other electronic docketing 
systems. Center staff are now com- 
pleting work on the first set of goals 
they and this users' group established 
a little more than two years ago. 

"We are meeting in Richmond to 
determine what remains to be done, 
and how responsibility for those 
tasks will be shared among the Cen- 
ter, the Administrative Office, and 
the courts," 

Mr. Hehman emphasized the roles 
and responsibilities of court staffs in 

Report Examines Presentence Observation Practice Jl ERSONNEL 

The Center recently published 
Observation and Study in the federal District 
Courts, an assessment of the current 
process for the observation and study 
of convicts before they are sentenced. 
The assessment, written by Julie 
Horney, is based on interviews with 
judges, probation officers, and 
Bureau of Prisons staff members. 

Under this statutory procedure, a 
judge may refer a convicted offender 
to the Bureau of Prisons for a 90-day 
period of observation and study 
before imposing sentence. The report 
focuses on the referral process in the 
courts and the preparation of the 
required reports in the correctional 
institutions, and examines the extent 


to which the reports are meeting the 
courts' needs. 

The report also comments on the 
extent to which the process meets the 
recommendations of a 1977 Center 
study on the same topic and offers 
several recommendations for further 
improvement. In addition, theassess- 
ment notes sections of the Compre- 
hensive Crime Control Act of 1984 
that will modify the observation and 
study process. 

Copies of the report can be 
obtained by writing to Information 
Services, 1520 H St., N.W., Washing- 
ton, DC 20005. Enclose a self- 
addressed, gummed label, preferably 
franked. ■ 



Published monthly by the Administrative 
Office of the US Courts and the federal |udi- 
cial Center Inquiries or changes of address 
should be directed to 1520 tl Street, N W . 
Washington, UC 20005 


Alice LO'Donnell, Dirc-ctor, Division of Inter- 
judicial Affairs and Information Services, I ed 
eral judicial Center loseph f Spanioi, jr., Act- 
ing Director, Administrative Office, US. 

Open Season for 
Life Insurance Changes 

There is a 30-day open season for 
ch<inging life insurance benefits 
until luly I . 

Ail employees of the federal 
court system can increase or de- 
crease the amount of term insur- 
ance they acquire through payroll 
deductions or purchase insurance 
for the first time. The Administra- 
tive Office has sent out information 
kits, titled 'I I ( .11 1083," to all 


John P. Moore, U.S. Circuit Judge, 

D.C. Cir., Apr. 5 
Stanley Sporkin, U.S. District Judge, 

D.D.C., Apr. 5 
George F. Gunn, Jr., U.S. District 

Judge, E.D. Mo., Apr. 17 
Sam B. Hall, Jr., U.S. District Judge, 

E.D. Tex., Apr. 17 
J. Frederick Motz, U.S. District Judge, 

D. Md., Apr. 23 


R. Allan Edgar, U.S. District Judge, 
E.D. Tenn., Apr. 15 


Melvin T. Brunetti, U.S. Circuit 
Judge, 9th Cir., Apr. 5 

Frank H. Easterbrook, U.S. Circuit 
Judge, 7th Cir., Apr. 10 


Harold D. Vietor, Chief Judge, S.D. 
Iowa, May 1 


Robert M. Duncan, U.S. District 
judge, W.D. Pa., Apr. 1 

Senior Status 

Barron P. McCune, U.S. District 
judge, W.D. Pa., Apr. 1 

loe Eaton, U.S. District judge, S.D. 
Fla., Apr. 2 


Zhief Judge Clark Urges Reconsideration of Proposed Budget Cut 

Reconsideration of a proposed 
eduction in the federal judiciary's 
>udget for fiscal year 1986 was urged 
ast month by Chief Judge Charles 
riark, chairman of the judicial Con- 
erence's Committee on the Budget. 

Chief Judge Clark, in a letter to 
en. Pete V. Domenici (R-N.M.), 
hairman of the Senate Budget Com- 
nittee, noted that the appropriations 
ubcommittee had advised that a pro- 
osed budget resolution would cut 
le 1986 funding request by nearly 
percent. "In light of the need to 
?duce deficit spending," Chief Judge 
lark said, "we have already reduced 
ur 1986 request by $4,435,000 and 

Chief Justice Burger 
Addresses Publishers 

The Chief lustice, speaking tothe 
.American Newspaper Publishers 
Association Convention: 

Assume a newspaper in 1953 
with a circulation of 146,300; 
65 pages of news and editor- 
ials; and a seniorstaff of nine. 
By 1969, 16 years later, the 
circulation is 420,200, the 
paper now has 88 pages of 
news and editorials, and still 
has a senior staff of nine. 
Another 14 years later, that is 
1983, the circulation is now 
510,000, the news and editor- 
ial columns run 151 pages a 
week, but the senior staff 
remains at nine. 

The Chief lustice converted the 
hypothetical newspaper figures 
into 1,463 cases on the docket of the 
Supreme Court and 65 signed opin- 
ions in 1953 as opposed to 5,100 
cases and 151 opinions in 1983— 
and nine justices then and now. 

This quoted statement was made 
in the context of the Chief justice's 
further discussion of the workload 
of the Supreme Court— this time to 
publishers— urging creation of an 
intercircuit panel to deal with cir- 
cuit conflicts, thus relieving the 
Court of many of the cases it must 
now decide. 

have since conceded an additional 
$12,150,000. We are now at the bare 
minimum. The proposed arbitrary 
reduction will severely impair the 
ability of the courts to accomplish the 
mission set for them by Congress." 
Chief Judge Clark noted that the 
entire judicial branch budget is less 
than one-tenth of 1 percent of all 
government spending. Among the 
reasons he cited for not reducing 
judicial appropriations further are 
that the judiciary must handle vast 
increases in litigation over which the 
courts have no control, since "courts 
must accept all cases filed which are 
within the jurisdiction set by Con- 

gress," and there are 85 newly 
created judgeships that require judi- 
cial and staff salaries and office space. 
"The judiciary is essentially a service 
organization," Chief Judge Clark 
added. "We cannot discontinue, post- 
pone, or curtail programs or activi- 
ties. The Criminal Justice Act 
requires that representation be fur- 
nished to defendants in criminal 
cases. Their numbers are increasing. 
This expense is uncontrollable. Jury 
costs resulting from increased civil 
and criminal filings cannot be 
stopped. Administrative and clerical 
needs caused by these increases must 
be met." ■ 

Four judges and four court administrators from the People's Repuhlu of China visited the 
Federal judicial Center last month while on a tour of the United States sponsored hy the U.S. 
Information Agency. Ustening to a presentation about the federal judiciary at the Center are, 
left to right, Tang Cuangli, president of the High People's Court of Guangdong Province, and 
Zheng TianxiangandRen jianxin, president and vice president, respectively, of the nationwide 
Supreme People's Court. President Zheng's rank is equivalent to that of vice premier. They also 
visited the Supreme Court, where the Chief justice hosted a dinner and reception in their honor. 

New Book Lists Crime 
Victims' Expanded Rights 

A new book published in anticipa- 
tion of the availability of up to $70 
million in funds to compensate crime 
victims details the assistance to 
which such victims are entitled. 

The book. The Rights of Crime Victims, 
was written for the American Civil 
Liberties Union by two New York 
lawyers, James Stark and Howard 

Its publication precedes implemen- 
tation of a crime victims' fund created 
by Congress as part of the Compre- 
hensive Crime Control Act of 1984. 
See VICTIMS, page 7 

Federal Rules 
Sent to Congress 

The Chief Justice, on behalf of 
the Supreme Court, sent to Con- 
gress amendments to the federal 
rules of civil, criminal, and bank- 
ruptcy procedure on April 29. 

Ail of the amendments were 
approved by the Judicial Confer- 
ence of the United States at its Sep- 
tember 1984 meeting and then sent 
to the Supreme Court for consider- 

If Congress takes no action, the 
rules become effective Aug. 1. 



CUMMINGS, from page 1 

compactness means that the judges 
and attorneys from different parts of 
the circuit see each other more fre- 
quently, which makes for a friendlier 
atmosphere in the courts. 

With the recent death of Chief Dis- 
trict Judge j. Waldo Ackerman, there 
was a great need for judges to try 
cases in Springfield, 111. Judges 
throughout the circuit were tre- 
mendous in their willingness to help. 
1 doubt that the response would have 
been as great if this had been a larger 
circuit and the volunteering judges 
had not known Judge Ackerman as 
well as they did, or if they had to 
travel great distances to hold court. 
Two of the states in your circuit, 
Indiana and Illinois, are in the so- 
called "rust bowl"— declining indus- 
trial states with severe and 
persistent unemployment. Does this 
area's economics affect the court or 
its caseload in any way? 

The term "rust bowl" is really a 
misnomer. Although it is true that 
heavy industry has greatly declined 
throughout the circuit and the rail- 
roads have been greatly reduced, new 
industries are replacing them. The 
economics of the states in the circuit 
greatly affect the court's caseload. 
For example, the decline of heavy 

attorneys taking a more realistic look 
at the merits of the issues before fil- 
ing the appeals. Over the last several 
years, the courts in this circuit have 
been much more willing to award 
attorneys' fees when a complaint or 
appeal is frivolous. This may be a fac- 

"En bancs should be used 
only sparingly. . . . Too 
many cooks spoil the 

Your court currently has 11 autho- 
rized judgeships, and three senior 
judges continue to serve. Is this 
enough judge power? 

The court currently has only eight 
active judges and three senior judges. 
When our three vacancies are filled. 

industry has reduced large air pollu- 
tion litigation while also increasing 
bankruptcy filings. Any change in the 
economic infrastructure affects the 
type and number of case filings. 

The Seventh Circuit showed a 2.8 
percent decline in cases filed in the 
last statistical year. Can you attrib- 
ute this to any one factor? 

I know of no one factor that 
resulted in the decline in filed cases in 
the court of appeals last year. I would 
like to hope that it was the result of 

"The decline of filings has continued. One possibility is 
the recognition by lawyers that our district judges' fine 
reputations make reversals less likely." 

tor in the reduction of appeals. The 
decline may also reflect business tak- 
ing a closer look at the rising cost of 
litigation. You may be interested to 
know that the decline of filings has 
continued. One possibility is the 
recognition by lawyers that our dis- 
trict judges' fine reputations make 
reversals less likely. 

Have you reduced the caseload of 
new case filings through any special 
management techniques? 

No, there is nothing special. There 
are procedures for expediting 
appeals, but the goal of this is not to 
dissuade appellants, but to minimize 
procedural problems and eliminate 
appeals in which there is no appellate 
jurisdiction. Preargument sessions 
with lawyers sometimes produce 

Does your court have a preargu- 
ment settlement procedure? 

The court does have docketing con- 
ferences with attorneys, as has been 
reported in a Federal Judicial Center 
publication. However, the purpose of 
those conferences does not include 
forcing settlement. It is an opportu- 
nity to ask the attorneys if they have 
discussed settlement and if settling is 
possible. The court has not taken an 
active role in dissuading appellants 
from taking their appeals. 

Docketing conferences were 
initiated by then-chief judge Luther 
M. Swygert, who brought many 
innovations to the court during his 
tenure. Now Senior Staff Attorney 
Ramsay L. Klaff conducts them as 
they are needed. They occur mostly 
by request, although Mrs. Klaff sug- 
gests them infrequently. 

our complement should be sufficient 
to handle the caseload at its present 
level. I have been concerned for a 
number of years that increases in the 
number of law clerks and staff attor- 
neys and in unpublished orders may 
be viewed as diminishing the judges' 
input into the decision-making pro- 
cess. Although we need to be con- 
cerned about efficient management 
practices, there must not be an undue 
delegation of judicial authority and 
shortcutting of justice. 

Some appellate courts are leaning 
more and more toward the issuance 
of relatively brief unpublished opin- 
ions. Does the Seventh do this? 

Although the court of appeals 
decides cases by unpublished orders, 
the court does not decide appeals 
without giving its reasons. The court 
of appeals has stated that it does not 
approve of trial judges deciding cases 
without giving reasons, so it would 
be inconsistent for the court not to 
give its reasons. Some of our unpub- 
lished orders may be longer than they 
need to be, since a lengthy recitation 
of the facts is not necessary and will 
only be read by the parties. I have ■ 
discussed this concern with my col- 
leagues. Nevertheless, in order not to 
proliferate the Federal Reporter 
[Second], we will continue to use 
orders when no new principles or 
conflicts with other circuits are 

Some courts use en bancs very 
sparingly. How do you feel about en 
banc hearings? 

I agree that en bancs should be used 
only sparingly. The Seventh Circuit 

hears about three or four cases a year 
en banc. The ensuing opinion is diffi- 
cult for the writing judge because it 
engenders so many suggestions by 
the majority judges, requiring many 
changes before the draft opinion 
receives approval. In truth, too many 
rooks spoil the broth. 

Has the Seventh Circuit cut back 
)n the time allowed for oral argu- 
nent, as a timesaving device? 

When 1 came to thecourt of appeals 
n 1966, 45 minutes for oral argu- 
nent was allotted to each side of an 
ippeal. The court then started limit- 
ng the oral argument time to a range 
'arying from 10 to 45 minutes per 
ide. Limiting oral argument time is 
iseful since it saves judicial time and 
loes not interfere with the decision 
naking in the case. When judges have 
[uestions or want to hear additional 
iral argument, the panel will allow 
nore than the allotted time to the 
larties. Although it is easy to give 
ttorneys additional time during oral 
rgument, it is hard to tell them not 
use all the time allotted. 

How useful is oral argument in 
eciding a case? 

While the majority of cases could 
e decided without oral argument, it 
■> difficult to determine which cases 
eally need argument for decision, 
ilthough oral argument may not be 
ecessary, it is usually helpful in 
eciding the case. Frequently, the 
idges have questions about areas of 
iw unanswered by the briefs. Oral 
rgument gives the judges an oppor- 
jnity to obtain answers to their spe- 
ific questions, it also allows counsel 
) hone particular and important 
oints. The Seventh Circuit has been 
strong believer in oral argument, 
nd that tradition will continue, 
it is important to remember that 
ral argument is not only helpful in 
2ciding the case, but it is also an 
ement of the appeal that counsel 
"id parties have come to expect. Oral 
"gument demonstrates to counsel 
lat the judges have read the briefs 
id are familiar with the case. It 
nsures that parties know their appeal 

being decided by well-prepared 
idges and not by staff, it can deter- 

mine the outcome in close cases. 

Being chief judge of a large metro- 
politan circuit court of necessity calls 
for a lot of administrative work. Do 
you handle this administrative work 
and also carry a heavy caseload? 

I carry the same caseload as all the 
other active judges. This was also 
true for my predecessors. We have 
been able to do that by delegating 
much of the administrative work to 
the staff and by the chief judge's wil- 
lingness to devote more time to his 
entire workload. 

How often does your circuit Judi- 
cial Council meet? 

The Judicial Council meets about 
three times a year. However, 
throughout the year there are many 
issues that are decided by polling the 
council via the mail. 

As some other circuits have done, 
the Seventh Circuit and the district 
courts encompassed in the circuit 
have adopted local rules for death- 
penalty cases. What new procedures 
are now in effect and why were they 

The Seventh Circuit judicial Coun- 
cil is developing rules for handling 

"The courts in this circuit 
have been much more 
willing to award attor- 
neys' fees when a com- 
plaint or appeal is 

habeas corpus cases involving the 
death penalty in the district courts, as 
well as appeals in thecourt of appeals. 
The procedures will only apply to the 
states of Illinois and Indiana, for Wis- 
consin has no death penalty. The 
rules are being designed to set forth 
specific procedures so that the cases 
may be expeditiously decided on the 
merits. The rules will ensure that all 
parties are notified and receive copies 
of all pleadings and that there are no 
situations in which the courts are 
unable to act because they do not 


have the proper information. 

You may be interested to know 
that I wrote to thechief justices of the 
Illinois and Indiana supreme courts 
and asked them if they would con- 
sider setting executions during the 
week as opposed to on a weekend or 
on Monday in order to minimize week- 
end communication problems of 
notifying judges and attorneys. This 
idea originated with the committee 
that has been drafting the rules for 
processing habeas corpus cases 
involving a person under a sentence 
of death. The proposal was supported 
by government attorneys as well as 
by attorneys who generally represent 
persons under a sentence of death. 
Chief Justice Howard Ryanof the Illi- 
nois Supreme Court has written to 
me that Illinois will not set execution 
dates on Monday so that there will 
not be a last-minute scramble by 
attorneys trying to file pleadings over 
the weekend. I am looking forward to 
a similar response from Indiana. 

Do you have a special jury utiliza- 
tion plan in the Seventh? 

The Seventh Circuit has no special 
jury utilization plan. The members of 
the Judicial Council do closely review 
the jury utilization statistics and 
recently asked one of our districts to 
work to bring down its percentage of 
jurors who did not serve and were 
not challenged. Two chief district 
judges who are members of the coun- 
cil volunteered to go to that district 
and talk to the judges about the 
procedures they had utilized in mak- 
ing effective utilization of potential 
jurors. The district has not reduced 
its voir dire panels and is considering 
other policies, such as pooling of 
jurors among judges to use them 
more efficiently and with less intru- 
sion on their time. 

Did your experience as solicitor 
general materially help prepare you 
for your work in the circuit court? 

After graduating from law school, 
my first few years were spent in the 
U.S. Solicitor General's Office as a 
young assistant handling cases in the 
courts of appeals and later in the 
See CUMMINGS, page 6 




June 3-5 Workshop for Appellate 
Court Case Management 

June 4-5 Judicial Conference Advi- 
sory Committee on Civil Rules 

June 5-7 Pretrial Services Officer 

June 6-7 Judicial Conference Subcom- 
mittee on Supporting Person- 

June 6-7 Judicial Conference Advi- 
sory Committee on Criminal 

June 9-14 Special Summer Program 

for Judges 
June 10-11 Judicial Conference 

Standing Committee on Rules 
of Practice and Procedure 
June 13-14 Judicial Conference Com- 
mittee on the Judicial Branch 
June 17-18 Judicial Conference Sub- 
committee on Judicial Statistics 
June 17-18 Judicial Conference Sub- 
committee on Federal Jurisdic- 
June 17-18 Judicial Conference Sub- 
committee on Federal-State Re- 
June 17-19 Workshop for Juror Uti- 
lization and Management 
June 19-21 Judicial Conference Com- 
mittee on Administration of 
the Bankruptcy System 
June 19-21 Seminar for Magistrates 
of the First, Second, Third, 
Fourth, and D.C. Circuits 

June 20-21 Judicial Conference Ad 
Hoc Committee on Inns of 

June 24-26 Judicial Conference Com- 
mittee to Implement the Crim- 
inal Justice Act 

June 24-26 Workshop for Fiscal 
Clerks of Circuit, District, and 
Bankruptcy Courts 

June 27-29 Fourth Circuit Judicial 

July 1-2 Judicial Conference Com- 
mittee on Administration of 
the Magistrates System 

July 1-2 Judicial Conference imple- 
mentation Committee on 
Admission of Attorneys to 
Federal Practice 

July 1-3 Judicial Conference Com- 
mittee on Judicial Ethics 





Vol.17 No. 6 June 1985 

The Federal Judicial Center 
Dolley Madison House 
1520 H Street, N.W. 
Washington, DC 20005 

Official Business 

Postage and 

fees paid 

United States 






^m. O0C. 




JULY 1985 

lupreme Court Names Spaniol as Clerk, Margeton as Librarian 

Stephen G. Margeton, chief librarian at one of 
Washington's largest law firms, has been named librar- 
n of the Supreme Court. 

Mr. Margeton will replace Roger Jacobs, who left to 
?come librarian at the University of Notre Dame Law 

Mr. Margeton, 40, is 
le chief librarian at 
:eptoe & Johnson, 
here he has been for 
' years. He previously 
rved as an assistant 
ference librarian in 
e law reading room of 
e Library of Congress. 
Chief Justice Warren 
Burger described Mr. 
argeton as "well re- 
ected by librarians 

d lawyers alike," Stephen G. Margetor^ 

d said that "the Court is fortunate to be gaining his 
dership and experience." 

VIr. Margeton was selected by the Court after a 
tional search. His experience in meeting the research 
eds of time-pressed lawy^s is expected to help him 
)vide assistance tntk^$k?ices. He is moving to what 
<^3"ed "a ii^r^JfHKat's been very well run," and ^ 

\»^^ ^^\0;^'^ See MARGETON, page 2 ^ __ ........... 

ireau of mso^^J^iredor Carlson Discusses Cj^m^Aencing, Punishment 

"iorman Carlson has been director of the 
■eau of Prisons for 1 5 years. Born in Iowa, 

Joseph F. Spaniol, Jr., deputy director of the Adminis- 
trative Office for the last seven years, has been appoint- 
ed clerk of the Supreme Court. He will replace Alex- 
ander Stevas, who will retire July 31. 

Chief Justice Warren E. Burger, who announced the 
selection on behalf of the Court, said, "I am convinced 

that Joe Spaniol has the 
experience, training, 
and personal qualities to 
do an outstanding job" 
as the Court's clerk. 
"We are delighted he is 
joining us at the Court." 
The clerk is one of the 
Supreme Court's four 
statutory officers and 
one of its most presti- 
gious staff members. 

"Although service in 

Joseph F. Spaniol, ]r. the Administrative 

Office has been very rewarding," Mr. Spaniol said, "I 
look forward to this new challenge and to the opportun- 
ity to continue to work within the Federal Judiciary." He 
will assume his new position on Aug. 1. 

The Qii^^^J^ce noted that Mr. Spaniol "has had a 

ittVjt'lS*^"^^''"'*^ "' "^^^eer with the Administrative Office," 

a career ^b^l^egan in 1951. Among the positions Mr. 

}\^\- See SPANIOL, page 2 

raduated from Gustavus Adolphus Col- 
in Minnesota in 1955 and received a 
■ter's degree from the State University of 
a in 1957. He began his career in penol- 
as a parole officer at Leavenworth, Kan., 
957 and held a series of positions at the 
eau of Prisons in Washington, including 
■ years as executive assistant to former 
ctor fames Bennett, from 1960 until his 
nntment as director in 1970. In a wide- 
ling Third Branch interview, Mr. 
Ison discusses expansion of the federal pri- 
system, judicial interest in prison condi- 
5, theories of punishment, employment 
nd bars, and determinate sentencing. 

here has been great growth in 
ion populations— in both state 
I federal institutions. What has 

caused this, other than an increase in 
the general population? 

The federal prison population has 
expanded by 40 percent, from 24,000 
to over 34,000 during the past five 
years. There are several factors in- 
volved, the first being the increased 
resources in the federal criminal jus- 
tice system— additional FBI and DEA 
agents, more U.S. attorneys, and of 
course an increase in the number of 
U.S. district court judges. The capac- 
ity of the system has increased, and 
we, at the end of the system, are 
experiencing the results of that ex- 
pansion. Another factor is a shift in 
public attitude about what should be 
done to those who commit crimes. 
Public sentiment has changed in 
recent years, and I think that has 

been reflected in sentencing policy as 
well as by the U.S. Parole Commis- 

How many institutions do you 
have in the federal prison system 
now, and what plans, if any, do you 
have for expansion? 

We have expanded, and we now 
have 45 institutions. We have added 
2,000 new beds to our capacity during 
the past year. The newest institution 
was opened May 17 in Phoenix, Ariz. 
We are aware of the demands placed 
on us and are attempting to be respon- 

Can you give more detail about 
your plans for dealing with the prob- 
lems of overcrowding? 

We are actually involved in what I 
See CARLSON, page 4 





,' , 

■ .'A'/ • 




•.'. AV 

'•^/vV.-. ■ 


:■ *i:«« 










SPANIOL, from page 1 

Spaniol has held at the AO were 
Administrative Attorney (the prede- 
cessor to the General Counsel's post); 
Chief of the Division of Procedural 
Studies and Statistics; and Assistant 
Director for Legal Affairs. He was 
named by the Supreme Court to be 
Deputy Director of the Administra- 
tive Office in 1977 and has been Act- 
ing Director since William E. Foley 
retired as director earlier this year. 

Mr. Spaniol 59, has had extensive 
involvement with the activities of the 
Judicial Conference of the United 
States. During his tenure as AO dep- 
uty director, he also served as secre- 
tary to the Judicial Conference and is 
currently secretary to eight of the 
conference's committees. Mr. Spaniol 
has attended every Judicial Confer- 
ence session for the past 28 years, and 
serves as the liaison between the 
Judicial Conference and the public, 
briefing reporters on actions taken at 
the Conference's twice-a-year meet- 

Mr. Spaniol has also played a role m 
many innovations in the federal court 
system, including the first seminars 
for newly appointed district judges 
and the establishment of the federal 
magistrates system. 

He holds a law degree from Case 
Western Reserve University and an 
LL.M. degree from Georgetown Uni- 
versity, and has completed the Har- 
vard University Senior Managers in 
Government program. 

Mr. Spaniol and his wife, Viola, 
have eight children. ■ 

Chief Judge WallerT. McGovern, l, (W.D. Wash.), chairman of the Court Admimslra- 
tion Committee's Subcommittee on Supporting Personnel held a meeting of the subcommittee at 
the Federal Judicial Center recently. With him in the Dolley Madison House during the 
discussions are, I. to r.. judge Daniel H. Huyett 3rd (E.D. Pa.); judge Thomas G. Gee (5th 
dr.); and R. Glenn Johnson, chief of the Personnel Division of the Administrative Office. 




Published monthly by the Administrative 
Office of the US Courts and the Federal |udi- 
cial Center. Inquiries or changes of address 
should be directed to 1520 H Street, N.W., 
Washmgton, DC 20005 


Alice L O'Donnell, Director, Division of Inter- 
ludicial Affairs and Information Services, Fed- 
eral judicial C enter loseph f Spaniol, |r.. Act- 
ing Director, Administrative Office, U.S. 

MARGETON, from page 1 

will assume his new post on July 15. 

Mr. Margeton is experienced in 
library automation, as well as re- 
search, and has held several posts in 
the American Association of Law 
Libraries. He has taught legal re- 
search at George Mason University 
School of Law. 

At the Library of Congress, Mr. 
Margeton worked in the law reading 
room, responding to requests from 
members of Congress, employees of 
federal agencies, and the public. He 
also worked in the Library of Con- 
gress's office in the Capitol, and was 
involved in researching legislative 
histories at the library. At Steptoe & 
Johnson, he supervised formation of 
a unit whose sole responsibility is to 
track legislative histories. Drawing a 
contrast between an academic library 

such as the Library of Congress and a 
private-sector library, Mr. Margeton 
said he expected the Supreme Court's 
library to be "more like academia,but 
the seriousness and cutting-edge 
legal nature of the [Justices'] requests 
will be more like the pressure of a 
private firm." 

He noted that he will probably be 
torn by a dilemma facing most of 
those in his profession: "Ideally, all 
law librarians like to straddle the 
fence between manager and re- 
searcher. I hope I can do both." 

Mr. Margeton is a graduate of the 
National Law Center of George 
Washington University and holds a 
master of library science degree from 
Catholic University of America. 

He is married to Margaret Salter 
Margeton, who is also a librarian. 
They have two children. ■ 

Judicial Panel Praditioners Exchange Views 
On Settlement at Federal Circuit Conference 

Judges and attorneys exchanged 
views on frivolous appeals, unjusti- 
fied delays in litigation, and settle- 
ment methods at the Court of Ap- 
peals for the Federal Circuit's recent 
annual judicial conference. 

Practitioners presented statements 
on those subjects, and Chief Judge 
Howard T. Markey of the Federal 
Circuit, Chief Judge Edward D. Re of 
the U.S. Court of International 

Trade, and Chief Judge Alex Kozinski 
of the U.S. Claims Court commented 
on their remarks. The three judges 
then answered questions. 

More than 1,400 people, including 
Chief Justice Warren E. Burger, the 
circuit justice for the Federal Circuit, 
attended the May 17 conference. 

Rep. Henry J. Hyde (R-IID ad- 
dressed the conference's luncheon 
session. ■ 


nsurance Policies for Resigned, Retired, and Senior Judges Explained 

Many judges have recently raised questions 
bout the extent of their life insurance cover- 
ge under the Federal Employees' Group Life 
nsurance program, known as FEGU, when 
ley retire from office or take senior status. 

The following series of questions and 
nswers provides details about this insurance, 
he answers are based upon both the statutory 
rovisions governing FEGU (chapter 8 7 of 
tie 5, U.S. Code) and the regulations of the 
Office of Personnel Management, as inter- 
-eted by the Administrative Office's Office 
the General Counsel. 
Q. Are recent complaints that 
idges will lose their FEGLI coverage 
hen they retire true? 
A. No. If they retire from regular 
:tive judicial service to senior status 
nder 28 U.S.C. §§ 371(b) or 372(a), 
ich judges continue to be fully 
ivered for life, as long as they con- 
lue in that status. 
Q. If a judge takes senior status, is 
ere a minimum of judicial activity 
' or she must undertake to retain 
11 insurance coverage? 
A. No. By statute, a judge who 
eets the age and length-of-service 
lalifications for retirement can take 
nior status and thereafter perform 
uch judicial duties as he is v^illing 
d able to undertake." He or she 
ntinues to drau^ the judicial salary, 
lus, a judge who opts to take senior 
itus, but no longer hears cases, 
rains the judicial office and the 
:ht to continue full insurance cov- 
ige, even though he or she is totally 
ictive. Such a judge still holds a 
licial commission, however, and 
?refore remains bound by the Code 
[udicial Conduct and the statutory 
)hibition against practicing law. 
!^. What happens to the insurance 
'erage of judges who resign? 
V. New statutory language, 
)pted as part of the Bankruptcy 
lendments and Federal Judgeship 
t of 1984, eliminates the word 
sign" from the relevant U.S. Code 
)visions. Under the recently 
ended provisions of 28 U.S.C. § 
(a), a judge who leaves the bench 
ige 65, having attained an age and 

years of service totaling 80, can opt to 
"retire from [judicial] office" rather 
than take senior status. That is the 
equivalent of a resignation on salary 
under the old language. A judge who 
opts for such a resignation/retire- 
ment receives an annuity that, by sta- 
tute, is equivalent to the judicial 
salary at the time of leaving the 
bench. That amount is frozen and 
does not rise with future judicial pay 
increases. The retiree is legally free to 
practice law. According to OPM, life 
insurance coverage begins to shrink 

Administrative Office sharply dis- 
agreed and requested a ruling that, 
based upon the new statutory lan- 
guage, would treat judges who retired 
from office the same for insurance 
purposes as those who retired from 
active service to senior status. OPM 
remained firm in its views, however, 
and two judges who retired under 28 
U.S.C. § 371(a) have now filed suits 
contesting OPM's position. Both suits 
are pending at this time, and are on 
expedited schedules for the briefing 
of cross-motions for summary judg- 


when a judge chooses this type of 
retirement. This is the same approach 
that previously applied to judges who 
resigned on salary under the old lan- 
guage of § 371(a). 

Q. Who decided optional coverage 
should begin to terminate at retire- 
ment for judges who don't take senior 

A. The Office of Personnel Man- 
agement, over vigorous objection 
from the Administrative Office. 

Q. Can OPM do this? 

A. OPM is authorized by statute 
to prescribe regulations for federal 
life insurance programs. OPM ruled 
that notwithstanding an amendment 
to the definitional section of the 
FEGLI statute made by last year's 
bankruptcy legislation, the new cate- 
gory of retired judges— those who 
resign on a fixed annuity— are no 
longer active employees and are thus 
ineligible for full, continuing FEGLI 
participation. When OPM made its 
regulatory interpretation known, the 


Q. How many people are affected 
by OPM's interpretation? 

A. According to the AO, only two 
judges eligible for retirement have 
elected to retire from office since the 
enactment of the Bankruptcy Amend- 
ments and Federal Judgeship Act. 
These are the plaintiffs in the two 

Q. How does insurance coverage 
for retired judges shrink? 

A. In the same manner as for other 
retired federal employees. Retired 
judges can opt to keep 25, 50, or 100 
percent of their basic insurance for as 
long as they want. One hundred per- 
cent of basic insurance coverage is 
equal to approximately a year's salary. 
If only 25 percent of basic insurance is 
retained, it continues without cost to 
the judge. If 50 or 100 percent of this 
coverage is kept, the judge does have 
to pay, and the premium rates are 
higher than during the judge's active 
See INSURE, page 8 




CARLSON, from page 1 

call a multifaceted approach to the 
problem of overcrowding. We are not 
concentrating solely on building new 
institutions. There is simply no way 

with the judges because we are 
responsible for carrying out the 
orders of the courts. I think judges 
should know as much as possible 
about the federal prison system— our 
strengths as well as our limitations. 

"I believe it is very important that we have a dialogue 
with the judges." 

we could build fast enough or obtain 
enough money from the Congress to 
solve the problem through construc- 
tion. We are trying to approach the 
problem on a systematic basis. First, 
as I have indicated, we are building 
several new institutions such as the 
one recently opened in Phoenix. We 
are beginning a new high-rise metro- 
politan detention center in Los 
Angeles. Other institutions are in the 
planning process— in the northeast, 
in the southeast, and in the north- 

We are also adding housing units 
wherever existing institutions can 
accommodate additional living space 
for inmates. 

Thirdly, we are attempting to 
acquire surplus facilities. We opened 
a new camp on a former Air Force 
base in Duluth, Minn., last summer. 
The bureau purchased the former 
state mental hospital in Rochester, 
Minn., and a closed seminary in 
Loretto, Pa., all of which have been 
converted into correctional institu- 

Finally, we have expanded the 
number of inmates who are trans- 
ferred to community treatment cen- 
ters at the end of their sentences. On 
any given day, we have 3,000 inmates 
who are in a halfway house rather 
than in prison. If we didn't have them 
in halfway houses, we'd have 3,000 
more inmates to worry about. 

You are good enough to come down 
and give your time to talk to the new 
district judges. Do they have special 
questions that they want to ask of 
you then, or when they visit the 

Yes, they do. I believe it is very 
important that we have a dialogue 

Do many of the judges come back 
to revisit? 

There are a number of federal 
judges who want to know where we 
send the individuals they commit to 
custody. Some judges have visited 
every federal institution in their 
region because they want to know 
more about what happens once they 
impose sentence. It's great that a 
judge has that much interest in the 
system— that he or she would take 
time from an obviously very busy 
schedule to find out firsthand what 
does happen to a defendant once 
sentence is imposed. 

Do judges ask about specific 

Some judges want to talk to pri- 
soners they sentenced in order to get 
their reaction. I think that's a very 
laudable step on the part of the fed- 
eral judiciary. 

The structure of the sentencing 
institutes has been changed over the 
years. What happens to cause changes 
in how judges, especially district 
judges, are oriented to sentencing 
and to their relationship to the 

1 think the changes have been a dis- 
tinct improvement. There is more 
discussion now by the judges them- 
selves and less lecture from experts. I 
believe there is a good balance today 
in the programs. I recall when I first 
attended a sentencing institute in 
Highland Park, 111., when lim Bennett 
was director of the Bureau of Prisons. 
At that time the program was virtu- 
ally all lecture. The new format that 
has been developed by the Federal 
Judicial Center over the past several 
years involves a mix of both lecture 
and discussion groups. 

Privately run prisons have been 
built in some areas. At least one of 
your institutions is under contract 
with one of these private contrac- 
tors, isn't it? 

We have a small youth facility for 
inmates in San Francisco that is oper- 
ated under contract by a private firm. 
Thus far, we have been generally 
pleased with the program. I am not 
necessarily opposed to privatization 
of prisons, but believe there are a 
number of questions and concerns 
that need to be carefully examined. 
Further research is clearly needed in 
this area. 

Some in correctional work oppose 
privatization of institutions though? 
The control and liability issues are 
of concern. Also the question is raised 
concerning the government abdicat- 
ing its responsibility when it turns 
over the important criminal justice 
sanction to the private sector. My 
guess is that private firms will proba- 
bly never run maximum-security 
institutions. On the other hand, they 
have done well in running halfway 
houses, community programs, and 
specialized institutions. I think the 
idea deserves careful analysis, and 
that's what we in the Bureau of Pri- 
sons are planning to do. 

And is security one of your main 

Yes, it is. That is why I have ques- 
tions concerning the private sector 
running secure institutions. They do 
a good job in community-based pro- 

"The idea [of abolishing 
parole] is truth in 

grams and probably minimum-secur- 
ity institutions. 

Penologists and sociologists have 
differing views on jailing convicted 
offenders, but generally have in mind 
retribution, general deterrence, re- 
habilitation, or incapacitation. Each 
of these has been in vogue at differ- 
ent times, and each requires varying 
approaches to penology. Does the 
federal prison system follow a fixed 



policy or theory? How much has this 
changed over the years? 

We in the Bureau of Prisons have 
discarded the notion that we have the 
ability to rehabilitate inmates. 
Twenty years ago we thought that if 
we had sufficient resources we could 
somehow change inmates' behavior 
while they were in prison. Experience 
and research in this country and 
throughout the world clearly indi- 
cate that's impossible. We can, how- 
?ver, provide opportunities for in- 
mates to change. That is an important 
difference. While people are incarcer- 
Jted we have the responsibility to 
provide them with opportunities in 
?ducation, vocational training, work, 
eligious activities, etc., so that those 
vho are motivated can use their time 

The correctional institution at 
3utner, N.C., continues with the 
Morris model of incarceration, with 
ixed release dates, special programs 
milding up to release, and, some- 
imes, assignment to a halfway 
louse, supervised by one familiar 
vith the prisoner's background. Has 
his plan shown a record of success 
ufficient to bring about an expan- 
ion and acceptance of Norval Mor- 
is's concepts of prison reform? 

We adopted the ideas suggested by 
'rof . Norval Morris of the University 
if Chicago Law School in his book The 
uture of Imprisonment. 

The research program at Butner 
^as devoted to the long-term recidi- 
istic, assaultive disorders. It has a 
ifficult population. 

Butner is one of our newer institu- 
ions. The institution was opened in 

"We have discarded the 
notion that we have the 
ability to rehabilitate 

?76 and has served as a model for 
rison construction throughout the 
)untry. The program has a psychiat- 
c component where we have in- 
ates who are sent for study and 
jservation. The other component is 

a research program that attempts to 
find new and better ways of dealing 
with the problems of prison man- 

When a new administration comes 
in, do you have to adjust to its policy 
and theory? 

No, 1 can say that I've been director 
for over 15 years, and the bureau has 
never changed philosophy or policy 
because of a change in administra- 
tion. I believe that our policies and 
philosophies are in tune with the 
thinking of most Americans. 



Norman Carlson 

How well has the concept of giving 
all or most federal inmates a job 
within the prison— the Chief Justi- 
ce's concept of "factories with 
fences"— worked? 

1 totally endorse the Chief justice's 
advocacy. One of the important 
things the Chief Justice has done is to 
serve as an advocate for correctional 
reform and improvement. There are 
very few leaders concerned with the 
need to improve our nation's prisons 
and jails. Politicians generally don't 
because there are no votes in this 
area, or it costs too much money. 
When a man with the stature of the 
Chief Justice speaks out on the sub- 
ject, people listen. It's been a great 
help to us, with the Congress and 
others in the budgetary process. 

Have you expanded Federal Prison 
Industries' services recently? 

As you know. Federal Prison Indus- 
tries is a totally self-sustaining corpo- 
ration that sells goods and services to 
federal agencies, including the fed- 
eral courts. We do much of the print- 
ing for the federal courts because of 
the Chief Justice's personal interest 
and support. We employ nearly 
10,000 inmates, on a 40-hour-a-week 
basis, working in Federal Prison 
Industries. Most important, it redu- 
ces idleness. 

Have you been in contact with the 
National Center for Innovation in 
Corrections recently started at 
George Washington University? 

Yes, we are actively involved. I 
went to Sweden and Denmark with 
the Chief Justice three years ago. 
That was the origin of the center at 
George Washington University. I 
think it's a most worthwhile 

Can you make arrangements with 
people in business to employ 

We certainly do attempt to do so. 
We have advisory councils that meet 
in our institutions and assist in devel- 
oping programs. I would like to men- 
tion that Federal Prison Industries 
now has an IBM executive on loan to 
the government. It's an excellent 
example of how corporations can pro- 
vide support and assistance. 

Of all of the countries that you've 
visited— and you have been in many— 
where did you find the most exem- 
plary prison system? 

"I believe that our poli- 
cies and philosophies are 
in tune with the thinking 
of most Americans." 

I would have to say the Scandina- 
vian countries that we visited— 
Sweden and Denmark. Their prisons 
are small and highly staffed. They are 
professionally managed and are the 
most humane that I have seen any- 
where in the world. 

Are there a lot of small institu- 
tions, or is the percentage of inmates 
See CARLSON, page 6 




CARLSON, from page 5 

a lot lower in those countries? 

There is a lower percentage of 
inmates because there is less crime. 
They certainly don't have the prob- 
lems we have in our country. Both 
Sweden and Denmark consider 50 
inmates to be a major institution. The 
200 inmates we saw in one institution 
occupied what is considered to be an 
extremely large institution. 

What are the recidivism rates in 
Scandinavian countries? 

Unfortunately, their recidivism 
rates are high, if not higher than, we 
find in this country. They have not 
solved the problem of recidivism any 
better than we have. 

When the Comprehensive Crime 
Control Act of 1984 is fully imple- 
mented, a prisoner's sentence will 
not be subject to parole as we now 
know it, and will only be able to be 
reduced a minimal amount by "good 
time." Do you feel that's a good 

I do. I realize it is controversial, but 
in effect, the idea is "truth in sen- 

One of the other goals of that leg- 
islation is to reduce the disparities 
among people who are serving time 
for the same crime. Will that ease 

"We are not building 
institutions like Alcatraz, 
Leavenworth, or 

prisoner complaints of unfair treat- 

Yes, I think it will serve to provide a 
more rational basis for imposing sen- 
tences. We now have similar inmates 
from one district who receive the 
maximum sentence for the offense 
and one from the next district who 
receives a much shorter sentence for 
the same offense. I think the Sentenc- 
ing Commission will provide a more 
uniform additional basis on which 
sentences are determined. 

Is that going to mean that the sen- 
tence will fit the crime and not the 


I believe it will fit both. The legisla- 
tive history is clear. The sentences 
are to consider the offender as well as 
the offense. 

One more question on the crime 
control act: Is it making an impact 
yet on the federal institutions? 

It has already had an impact, prim- 
arily in pretrial confinement for of- 
fenders who previously would have 
been released on bond or on recog- 
nizance. That has served to increase 
our population. 

At all the institutions or primarily 
at Springfield, 111.? 

Springfield, and more recently 
Rochester, Minn. I'd like to mention 
Rochester because it's an institution 
judges will be interested in. We ac- 
quired the former state mental hospi- 
tal and are now making some minor 
modifications to the buildings. It is a 
comparatively new, modern hospital 
less than 20 years old. The institution 
will have a surgical as well as a medi- 
cal component and a psychiatric pro- 
gram. We have already recruited sev- 
eral top-notch psychiatrists from the 
Rochester area who are now working 
at the institution. 

Do you expect that as a result of 
the changing approach to insanity 
reflected in the 1984 legislation you 
will house fewer people who are 
incompetent to stand trial? 

No, I don't believe so, because we 
will be housing some offenders who 
are found to be both dangerous and 
incompetent to stand trial. Previously 
those found incompetent were turned 
over to state authorities for hospital- 
ization. Because of the new statute, 
we will be seeing more offenders in 
confinement who are found to be 

Would you like to talk about the 
National Institute of Corrections? 

I would certainly like to discuss the 
National Institute of Corrections. It 
is a program the Chief Justice is per- 
sonally responsible for. As you may 
recall, there was a national confer- 
ence on corrections in Williamsburg, 
Va., in 1972. During the conference, 
the Chief justice made a speech in 

which he suggested that the federal 
government develop a program sim- 
ilar to the FBI Academy in order to 
assist state and local correctional 

From that speech, which several 
individuals picked up on, the National 
Institute of Corrections was devel- 
oped. While located here in the 

Norman Carlson 

Bureau of Prisons, it is an autonom- 
ous organization. While the institute 
is small— 41 full-time staff and a 
budget of 12 million dollars— I think 
it does play an important role in 
attempting to improve our nation's 
prisons and jails. 

Does the institute direct its funds 
at one specific purpose? 

Training is the primary function- 
training of probation as well as prison 
and jail personnel. 

The escape of Bernard Welch from 
the Federal Metropolitan Correc- 
tional Center in Chicago has received 
national attention. What might be 
done to make the bureau's institu- 
tions more escape-proof? 

There were a series of breakdowns. 
Welch was initially sent to the maxi- 
mum-security penitentiary at Mar- 
ion, 111.— where he belonged. While 
there, he cooperated with the govern- 
ment by providing useful informa- 
tion. As a result, we were asked to 
See CARLSON, page 7 


CARLSON, from page 6 
move him out of Marion for protec- 
tion because the information he pro- 
vided made him vulnerable to attack 
by other inmates. He was placed in 
the Chicago Metropolitan Correc- 
tional Center, from which he escaped. 

There is no such thing as an escape- 
proof prison. I think that's a myth. 
lA/elch proved that certainly Chicago 
kvas not escape-proof. 

To sum up, you have been in cor- 
rections work for many years. What 
do you view as the most progressive 
steps that have been taken over the 
past decade or so? 

The professionalism of our staff. 
Today over half of the new correc- 
:ional officers have college degrees. 



Mex Kozinski, U.S. Circuit Judge, 9th 

Cir., June 5 
Robert C. Broomfield, U.S. District 

Judge, D. Ariz., May 15 
Ilaude M. Hilton, U.S. District Judge, 

E.D. Va., Mayl5 
)onald E. Walter, U.S. District Judge, 

W.D. La., Mayl5 
Vayne E. Alley, U.S. District Judge, 

W.D. Okla.,June3 
ames D. Todd, U.S. District Judge, 

W.D. Tenn., June 5 
ouis L. Stanton, U.S. District Judge, 

ihn P. Moore, U.S. Circuit Judge, 

lOthCir., May 3 
Kenneth F. Ripple, U.S. Circuit Judge, 

7th Cir., May 3 
leorge F. Gunn, Jr., U.S. District 

Judge, E.D. Mo., May 3 
am B. Hall, Jr., U.S. District Judge, 

E.D. Tex., May 3 
)seph H. Rodriguez, U.S. District 
Judge, D.N.J., May 3 


arol Los Mansmann, U.S. Circuit 
Judge, 3rd Cir., Apr. 22 

•hn P. Moore, U.S. Circuit Judge, 
lOthCir., May 14 

Staff, I think, are much better 
equipped to work in corrections than 
they were 28 years ago, when I first 
started. I am also proud of the staff 
training we provide. We now have a 
staff training center in Clynco, Ga., 
which trains all employees. 

The second major improvement, I 
think, is the design of new institu- 
tions. We are not building institu- 
tions like Alcatraz, Leavenworth, or 
Atlanta. We are building institutions 
like Butner and Phoenix that are 
modern, safe, and humane. Above all, 
they cost far less to construct than 
traditional prisons. They cost less 
because we don't use the bars and the 
grilles that we have in the old peniten- 
tiaries. ■ 


Thomas J. Aquilino, Jr., Judge, U.S. 

Court of International Trade, 

May 2 
Alice M. Batchelder, U.S. District 

Judge, N.D. Ohio, Apr. 15 
Carolyn R. Dimmick, U.S. District 

Judge, W.D. Wash., Apr. 17 
R. Allan Edgar, U.S. District Judge, 

E.D. Tenn., Apr. 29 
Herman J. Weber, U.S. District Judge, 

S.D. Ohio, Apr. 30 
James F. Holderman, Jr., U.S. District 

Judge, N.D. 111., May 1 
George La Plata, U.S. District Judge, 

E.D. Mich., May 1 

Senior Status 

Thomas A. Flannery, U.S. District 

Judge, D.D.C., May 10 
Lee P. Gagliardi, U.S. District Judge, 

Sarah T. Hughes, U.S. District Judge, 

N.D. Tex., Apr. 23 
William G. East, U.S. District -Judge, 

D. Or., Apr. 27 
Albert G. Schatz, U.S. District Judge, 

D. Neb., Apr. 30 
George E. Cire, U.S. District Judge, 

S.D. Tex., May 5 


John P. Moore was incorrectly identi- 
fied last month as having been nomi- 
nated to the D.C. Circuit, not the 
10th Circuit. 






9-12 Orientation for New Pro- 
bation Officers 

15-16 Judicial Conference 
Committee on the Administra- 
tion of the Criminal Law 
16-19 Orientation for New 
Probation Officers 
18-19 Judicial Conference 
Committee on the Administra- 
tion of the Probation System 

23-26 Eighth Circuit Judicial 

29-30 Judicial Conference 
Committee on the Operation of 
the Jury System 
30-31 Judicial Conference 
Committee on Court Adminis- 

7-9 Seminar for Magistrates 
of the Sixth, Seventh, and 
Eighth Circuits 

Positions Available 

staff Assistant to the Circuit Executive, 
U.S. Court of Appeals for the Eleventh Cir- 
cuit. Salary to $36,327. Serves as office man- 
ager for administration and internal supervi- 
sion of circuit executive's office. Assists with 
budget, personnel, office space, publications, 
conferences, security, and court planning. 
Application and resume or SF-:71 should be 
sent by July 15 to Norman Zoller, Circuit 
Executive, U.S. Court of Appeals, 50 Spring 
St., S.W., Atlanta, GA 30303-3147. 

Clerk, U.S. Bankruptcy Court, District of 
Alaska. Salary $44,430 plus $11,107 cost-of- 
living allowance. Responsible for managing 
the administrative activities of the clerk's 
office, including consultation on court policies 
and supervision of personnel, budget, case 
processing, service of process, and record 
keeping. Requirements include 10 years' 
administrative experience, including 3 years 
of management responsibility. Law practice 
may be substituted for either administrative 
or managerial experience; college-level educa- 
tion may be substituted for general adminis- 
trative experience, with each year counting 
for 9 months' experience. A degree in public, 
business, or judicial administration may be 
substituted for another year's general expe- 
rience, and a law degree for 2 years' general 
experience. Send resume indicating position 
applied for to Hon. J. Douglas Williams II, 
Bankruptcy Judge, 701 C St., Box 47, Anchor- 
age, AK 99513. 





',. •■"'■ 



■ ■:■:<■ 



INSURE, from page 3 

service because the government's 
contribution to the cost of the insur- 
ance ceases. At retirement, judges 
begin to lose any optional FEGLI cov- 
erage they had when they were 
active. FEGLI's option A, which usu- 
ally provides $10,000 in coverage in 
addition to the basic coverage, shrinks 
2 percent a month after resignation 
until it reaches $2,500, where it stays. 
Option B, which provides insurance 
up to five times the annual salary, 
declines 2 percent a month and ends 
completely 50 months after resigna- 
tion. Option C, family coverage, is 
reduced in the same way as option B. 
There is no charge for optional cov- 
erage while it is being reduced. 

Q. Doesn't a life insurance policy 
usually build up value? What happens 
to that value for judges who retire? 

A. Whole-life insurance builds up 
value. Term-life insurance, which is 
basically the kind offered by FEGLI, 
doesn't have any surrender, trade-in. 

or residual value. Term life costs 
much less than whole life for that 
reason. Insurance experts say that 
people who want to make sure they 
will leave something to their survi- 
vors should consider whole-life cov- 
erage. People who want to protect 
young children or ensure that a mort- 
gage will be paid off, by contrast, 
should consider term insurance be- 
cause, as they approach retirement 
age, their reasons for having life 
insurance become less urgent and 
they can simply let the policy lapse. 

Q. Can a retiring judge convert 
the policy to one paid for individually, 
as opposed to a FEGLI group policy? 
A. Yes, with some limitations, ac- 
cording to OPM. Employees who are 
separated from federal service have 
the option of selecting alternate cov- 
erage, up to the level of FEGLI's basic, 
option A, and option B coverage from 
a private carrier on an approved OPM 
hst. The replacement policy isn't term 
insurance, though, and will almost 
certainly be more expensive than 

FEGLI's group term rates. 

Q. Is it necessary to have a physi- 
cal exam to get that insurance? 
A. It is not. 

Q. What happens to the insurance 
benefits of disabled judges? 

A. A judge who is disabled becomes 
a senior judge and is entitled to the 
same insurance benefits as other 
senior judges. 

Q. What happens to judges who 
resign before age 65? 

A. Such judges come under the 
general rules for federal employees 
who resign; that is, they lose all their 
coverages. There is no provision per- 
mitting continuation of the basic 
insurance indefinitely or of the op- 
tional coverage for 50 months. A 
judge who resigns before 65 could, 
like any other resigning federal em- 
ployee, convert the term policy- 
basic and optional— to a private policy 
that would be nonterm insurance at 
increased cost. The right to make 
such a conversion isn't affected by 
health or medical considerations. ■ 





Vol. 17 No. 7 July 1985 

The Federal Judicial Center 
Dolley Madison House 
1520 H Street, N.W. 
Washington, DC 20005 

Official Business 

Postage and 

fees paid 

United States 










■ I ■ 

AUGUST 1985 

L. Ralph Mecham, ARCO Executive, Named AdminisiraHve Office Head 

fudge Robert L. Taylor Recalls School Integration 
Cases, Efforts to Reduce Hugh Docket Backlog 

judge Robert L Taylor of thi Eastern Dis- 
ricl of Tennessee has been onithe federal trial 
ench since 1949 and served as the district's 
hief judge from t^l to 1^6.9 and from 


to 19^^ 


Judge T-uylor graduated from Milligan 
.ollege and Vanderhilt University, earning a 
JW degree from Yale m 1924. He was 
ngaged in private practice in Johnson City, 
'enn., until his appointmerik^^e district 
mrt. In a wide-rang^ysherview, Judge 
'aylor recalls th^^lTms of^Mng the only 
deral )ud^^0h large ^strict for many 
rars, his efforts /oW^i?p a do^^cklog of 
ve years, his rolefn som^f^jf^desegrega- 
on cases, and his involt^sf^ent in the trials of 
00 former governors. Otto Kerner of Illinois 
id Marvin Mandel of Maryland. 

You come from a very prominent 
ennessee family. Your father was 
overnor of Tennessee, wasn't he? 

My father served as governor and 
so as a congressman. He was a 
epublican. Of course his brother, 
ncle Bob, was a Democrat— this 
ate has always been Democratic, 
(cept in the last few years. And Bob 

beat Alf, my father, easily. Then he 
ran against him again. Twice they 
ran, brother against brother, one a 
Democrat and one a Republican. 

Well, in that atmosphere, didn't 
you ever get bitten by the political 

No. The only thing I ever ran for 
was an elector. I was an elector when 
1 voted for Truman as president. 

Did you always want to be a judge? 

Never thought about being a judge. 
I had to make a living; I had a wife and 

Were you in private practice, 

Right, private practice in Johnson 
City, in a little firm known as Cox, 
Taylor and Epps. We thought it was a 
busy firm not only in Johnson City 
but throughout the state. As general 
practitioners we handled anything in 
the United States. Our firm produced 
two federal judges, myself and Wil- 
liam E. Miller, now deceased, who 
was appointed to the U.S. Court of 
Appeals for the Sixth Circuit. 

See TAYLOR, page 4 

L. Ralph Mecham, Washington 
representative for federal govern- 
ment relations of the Atlantic Rich- 
field Company, and a former 
university and corporate vice presi- 
dent and Senate aide, has become the 
sixth director of the Administrative 
Office of the U.S. Courts. He was 
appointed by the Supreme Court on 
the recommendation of a search com- 
mittee composed of the Chief Justice 
and Justices White and Rehnquist. 

Mr. Mecham, 57, took office July 
15, replacing William E. Foley, who 
retired earlier this year. 

His selection was announced late in 
June by the Chief Justice, who said, 
"Ralph Mecham possesses an impres- 
sive background of accomplishment 
in both the private and public sectors. 
We are pleased to bring him into the 
Judicial Branch." 

Chief Justice Burger noted that 
Mr. Mecham's "impressive and var- 
ied background and personal qualities 
took him to the top of the list of an 
outstanding group considered for the 

Mr. Mecham earned his B.S. 
degree at the University of Utah and 
his J.D. degree at George Washington 
University. In addition, he holds an 
M.P.A. from Harvard. He was 
awarded a congressional fellowship 
to Harvard in 1963 and a graduate 
fellowship by Harvard in 1965. 

Mr. Mecham began his Washing- 
ton career as an assistant to Senator 
Wallace Bennett (R-Utah), for whom 
he worked for 13 years. He served as 
the senator's administrative assistant 
and counsel for eight of those years. 
He later was special assistant to the 
secretary of commerce for regional 
economic coordination, as well as 
cochairman of the Four Corners 
Regional Economic Development 
Commission, a presidential appoint- 
ment. The Commission was a federal- 
state agency designed to deal with 

See MECHAM, page 2 



L. Ralph Mecham 
MECHAM, from page 1 

common problems faced by Utah, 
Arizona, New Mexico, and Colorado, 
which comprise one-tenth of the land 
area in the 48 contiguous states. 

Between his service to Senator 
Bennett and his position at the 
Department of Commerce, Mr. 
Mecham returned to Utah for four 
years as vice president of the Univer- 
sity of Utah, where, among other 
duties, he supervised continuing edu- 
cation programs and served as dean. 
He also taught constitutional law to 
political science students. 

After his work on the Four 
Corners commission, Mr. Mecham 
became vice president in charge of 
federal government relations forThe 
Anaconda Company. He became 
Washington representative for the 
Atlantic Richfield Company when it 
acquired Anaconda, and held that 
position until accepting the AO 

Mr. Mecham was lured from the 
private sector to the AO, he said, 



Published monthly by the Administrative 
Office of the US Courts and the Federal |udi- 
ciai Center. Inquiries or changes of address 
should be directed to 1520 H Street, N.W., 
Washington, DC 20005 

Alice L O'Donnell, Director, Division of Inter- 
ludicial Affairs and Information Services, Fed- 
eral ludicial Center. 

because he was "looking for a new 
challenge— something with a sense 
of mission. There's a lot of good that 
can be done, and 1 want to do my 

Mr. Mecham said that his goals as 
the AO's chief would be "to build on 
the good that's been done already— 
take a fresh approach to it. I'd like to 
continue to strengthen the reputa- 
tion the AO already has— to have the 
AO viewed as an elite corps dedicated 
to the needs of the judiciary." 

Mr. Mecham also stressed that he 
wants to establish lines of communi- 
cation with all judges and that he 
wants them to know that he will 
always be available. He hopes that, in 
cooperation with the judges, admin- 
istrative standards can be developed 

that are clearly understood. 

Mr. Mecham commented that he is 
now rounding out his government 
career in the third branch, having 
already worked in Congress and in 
the executive branch. 

Asked about his feelings about con- 
tinuing education for judges, Mr. 
Mecham said, "I wouldn't presume to 
tell judges what to do, but every 
human being should keep the intel- 
lectual fires stoked some way." 

Mr. Mecham stated that an increase 
in judicial salaries is among his high 
priorities. Having come from the pri- 
vate sector, he is well aware of the 
dramatic differences between those 
salaries and those of the judiciary — 
and the basic inequity of the latter. 

Mr. Mecham and his wife, Barbara, 
live in the suburbs of Washington. 
They have five children. ■ 

Chief Justice Named 
To Bicentennial Commission 

Chief Justice Warren E. Burger has 
been designated by President Reagan 
to serve as chairman of the Commis- 
sion on the Bicentennial of the U.S. 
Constitution. Persons interested in 
applying for the staff directorship or 
other positions with the commission 
should send appropriate information 
to Dr. Bradford Wilson, Supreme 
Court, Washington, DC 20543. ■ 

Circuit Executives' Role Traced in Center Report 

The First Decade of the Circuit Court 
Executive: An Evaluation, by John W. 
Macy, Jr., was published by the Cen- 
ter last month. Mr. Macy has served 
as a member of the Board of Certifi- 
cation since its inception in 1971. 

The author reviews the functions 
performed by circuit executives in 
the various circuits and describes the 
extent to which the position has 
expanded over the past ten years. He 
also identifies a number of respects in 
which the potential of the position 
has yet to be realized. In addition, he 
offers recommendations that are 
relevant to extension of the concept 
of an executive to the larger district 

Mr. Macy assesses the selection 
process that identifies those who are 
eligible for appointment and offers 
suggestions for the future develop- 
ment of the role of the selecting body, 
the Board of Certification. 

Prior to his election to the Board of 
Certification, Mr. Macy served as 
executive director of the Civil Service 
Commission and, afterwards, as 
chairman for eight years. 

Copies of the report can be 
obtained by writing to Information 
Services, 1520 H St., N.W., Washing- 
ton, DC 20005. Enclose a self- 
addressed, gummed label, preferably 
franked (but do not send an enve- 
lope). * 

. 3 


Programs on Inns of Court 
And Summary Jury Trials 
Available from Center 

The Center has recently released 
two video programs, which federal 
court personnel can borrow from the 
Center's Information Services. 

The American Inns of Court Program: An 
Introduction (VG-043), a 35-minute 
tape, is introduced by Chief Justice 
Warren E. Burger and narrated by 
Chief Judge Howard Markey, a 
member of the Judicial Conference's 
^d Hoc Committee on American Inns 
jf Court. 

American Inns of Court are com- 
)osed of federal and state judges, 
■xperienced litigators, law profes- 
ors, and law students. They meet 
hroughout the year and focus on 
mproved trial advocacy and profes- 
ional courtesy and ethics. Fourteen 
nns have been chartered to date, and 
everal others are being created. The 
irst Inn was founded at the J. Reuben 
Hark Law School of Brigham Young 
The video program describes the 
evelopment of the Inns of Court 
lovement in America, the role of the 
merican Inns of Court Foundation, 
nd the typical structure and mem- 
ership of an Inn. It also presents Inn 
leetings, including mock trials and 
■itiques, discussions among Inn 
lembers, and other Inn functions. 

Summary Jury Trials in the Western Dis- 
ct of Michigan (VJ-071), a 55-minute 
pe, was produced in cooperation 
ith the bench and bar of that dis- 
ict. The program, narrated by Judge 
chard A. Enslen, explains the 
ocedure as it is used in Western 
ichigan and, using fictitious cases, 
picts abbreviated segments of pre- 
lal and settlement conferences as 
?11 as attorneys' summary jury 
esentations in three separate cases. 
le summary presentations— in a 
oducts-liability case, an employ- 
?nt discrimination case, and a 
each-of-contract case— illustrate 
s variety of techniques available to 

Selection of 1985-86 Judicial Fellows Announced 

The 1985-86 Judicial Fellows are 
Thomas E. Baker, law professor at 
Texas Tech University in Lubbock, 
Tex.; Susan M. Olson, political 
science professor at the University of 
Minnesota in Minneapolis; and Ira P. 
Robbins, professor at American Uni- 
versity's Washington College of Law 
in Washington, D.C. 

Mr. Baker will work at the Supreme 
Court, while Ms. Olson and Mr. 
Robbins will work at the Federal 
Judicial Center. 

Mr. Baker, 31, 
teaches a variety 
/^^-^f^^^ of criminal, pro- 
cedural, and consti- 
^ , I tutional law 
T. Bnker courses. He has 

taught at Texas Tech since 1979, 
after a two-year clerkship to Judge 
James C. Hill of the Fifth Circuit. He 
graduated from Florida State Univer- 
sity and the University of Florida's 
Holland Law Center. 

Ms. Olson, 35, teaches constitu- 
tional law, jurisprudence, and courses 
about the judicial process. She gradu- 

ated from Pomona College in Clare- 
mont, Cal., and received master's and 
doctoral degrees from Syracuse Uni- 
versity. Her disser- 
tation on litigation 
brought by special- 
interest groups 
focused on the 
movement. She S. Olson 

has since written a book about the 
legal rights of disabled people and 
several articles for legal periodicals. 

Mr. Robbins, 35, began his teach- 
ing career at the University of Kansas 
School of Law in 1975, and went to 
American University in 1979, where 
he teaches courses on criminal law 
subjects and on 
conflict of laws and 
choice of law. He 
graduated from 
the University of 
Pennsylvania and 
/. Rohhins Harvard Univer- 

sity Law School and served as the pro 
se clerk for the Second Circuit from 
1973 to 1975. ■ 

litigators in summarizing their 
clients' cases to the jury. 

U.S. District Judge Thomas Lam- 
bros originated the summary jury 
trial procedure in Cleveland five 
years ago, and it has since been used, 
with various modifications, in courts 
around the country. In essence, the 
procedure allows attorneys in civil 
cases that appear unlikely to settle to 
present a summary of the case to a 
six-person jury, which renders a non- 
binding verdict. The procedure's 
objective is to provide attorneys and 
their clients with a realistic assess- 
ment of the verdict a jury would 
likely reach in an actual trial, and thus 
provide a basis for settlement. 

At its September 1984 meeting, the 
Judicial Conference "endorse[d] the 
experimental use of summary jury 
trials as a potentially effective means 
of promoting the fair and equitable 

settlement of potentially lengthy civil 
jury cases." 

Further information on this tech- 
nique is contained in a 1982 Center 
report. Summary Jury Trials in the North- 
ern District of Ohio, also available from 
the Center's Information Services. 

To order either or both video- 
cassettes, write to Information Ser- 
vices, 1520 H St., N.W., Washington, 
DC 20005, noting the title and 
catalog number (given above). Spec- 
ify either 1/2-in. VHS or 3/4-in. U- 
matic format and enclose a 
self-addressed, gummed label. 

At present, the FJC is unable to 
distribute the video programs to per- 
sons outside the federal courts, 
although courts may wish to request 
the tapes to show at meetings of the 
bench and bar. ■ 



TAYLOR, from page 1 

Did you ever aspire to be on the 
court of appeals? 

No. I like to be on the district court, 
where the action is. 

After private practice, did you go 
right to the bench? 

Yes, after 25 years of private prac- 
tice. I was scared to death. I first 
moved to Knoxville, 100 miles from 
Johnson City, and stayed for a while 
at the Andrew Johnson Hotel. I went 
right to work. I worked down here at 
night until three or four o'clock in 
the morning. I was the only federal 
judge in this part of the state until 
1961, when another judgeship was 

Did you have any orientation? 
No. I just walked right in and went 
to work. The docket was far behind 
because my predecessor had been ill 
and he was the only federal judge in 
the northern part of East Tennessee. It 
took me five years to catch up, and I 
made a resolution then that I would 
never let the docket get behind again. 
There were hundreds of cases; there 
had been an accumulation for five 
years. It took me a long time to clear 
them, but I had the cooperation of the 

Some very prominent lawyers 
have come from Tennessee, or have 
traveled to Tennessee to be before 
your bench. Which of these people do 
you remember in particular? 

Tennessee can be very proud of its 
lawyers; we had— and have— some of 
the finest in the country. I am think- 
ing of attorneys like Sen. Estes 
Kefauver, Ray Jenkins, Graham Mor- 
ison, and Sen. Fioward Baker. 
Recently I read in the local newspaper 
that Howard Baker told the press 
that 1 "taught" him "how to practice 
law." There are so many good law- 
yers in this state, though, 1 hesitate to 
be more specific. I could add, how- 
ever, that both John L. Lewis and 
Gen. William Westmoreland were 
the only persons appearing in my 
court who elected to bow as they 
approached the bench. Mr. Lewis was 
a witness for the United Mine 

Workers union in a suit brought by 
several small coal companies against 
the union and larger coal companies. 
General Westmoreland was a charac- 
ter witness for Judge Otto Kerner. 

Do you like to try any special type 
of case? 

Oh, I like any kind of case where 
you have good lawyers. With good 
lawyers you don't have any problems. 
If you have bad lawyers, regardless of 
what the case is, you do a bad job. 

What happens when you get bad 
lawyers — do you try to help them? 

Yes, but there is only so much a 
judge can do. 

"I like any kind of case 
where you have good 

Do you get impatient with them if 
they are not prepared? 

They say I get too impatient, but if 
they are not prepared they shouldn't 
appear before the court. 

What would you do? 

Some lawyers would come in 
expecting that their cases would be 
passed. I would say, "Now there will 
be no passing." They probably said 
later when they left the courtroom, 
"He's as mean as they come." I would 
hold them to it, though; I'd try the 
cases. I finally got the docket current, 
and from then on I wouldn't pass a 
case unless there was a death in the 
family of a litigant or the lawyer, or if 
an injustice would occur. 

I think I am the best friend the law- 
yer has. He cannot bill his client until 
he tries or settles the case and closes 
the file. 

How many hours were you sitting 
each day? 

Ten, twelve hours, sometimes at 
night. I also held court on Saturdays. 
If I had court on Friday and we weren't 
finished, we would continue on Sat- 
urday. We even met on some Sun- 
days. Holidays? — we didn't know 
what a holiday was. It took a lot of 
work but I got the docket current, 
and it's been current ever since. 
Is the docket current now? 

Yes it is . With the additional judge- 
ships, we probably have the most cur- 
rent docket in the country. I believe 
statistics will bear that out. 

You've been an active judge on the 
U.S. District Court for the Eastern 
District of Tennessee for almost 36 
years, and you've earned the reputa- 
tion of being a good judge— good 
judicial temperament, fairness, good 
grasp of the issues before you, and 
good case management. What advice 
would you give to new district judges 
just coming on the federal bench? 

What advice would I give them? 
Well, to work hard, to set the cases 
for trial promptly, and, after having 
set a case for trial, to try it on the day 
for which it is set, unless there is 
some good reason to change the date, 
and then decide it. Holding cases 
under advisement will adversely 
affect your health. A case should be 
decided promptly after it has had thor- 
ough consideration. The judges 
must know the law and how to apply 

You've had considerable Judicial 
Conference experience. Was this val- 
uable to you? 

Yes. I got good experience and 
received valuable advice from the late 
Judge Alfred Murrah. I wouldn't take 
anything for that experience and for 
Judge Murrah's advice. When he first 
called me, I told him that I didn't have 
time for a meeting of his committee, 
and he said I couldn't afford not to 
come, that I would save time eventu- 
ally. I got more out of the pretrial 
committee work than any other out- 
side activity I ever participated in. 

Were you at that committee meet- 
ing to learn or to try to give advice to 

I was there to learn all I could 
myself, and how to use what I learned 
in handling cases. I had never used 
pretrial conferences before; after 
learning the value of pretrials 1 [felt I 
would not be] a good judge without 
holding pretrials. The judges and 
lawyers in Tennessee didn't know 
anything about pretrials. I told them 
once they knew how to participate in 
a pretrial conference, they would 

ippreciate its value. At first they 
:hought I was crazy, and I am sure 
:hey said, "He ought to be examined." 
rhey learned quickly and they found 
)ut I was right. 

Was it the old argument that 
you're just trying the case twice, and 
herefore they didn't want pretrial? 

That's right. 

Do you think the Judicial Confer- 
nce functions in a good way today, 
hrough the committees? 

Yes, I do. 

Many members of the press have 
ushed for having what they call 
sunshine in government." They 
b^ant to attend the Judicial Confer- 
nce meetings. Do you believe it 
/ould do any harm to have the press 
ttend these meetings? 

No. But only if the press comply 
nth restrictions placed upon their 
ttendance— then let them attend, 
hey would attend as observers, but 
ot participants. 

Would you feel comfortable with 
aving television cameras in the 

No, I wouldn't feel comfortable. No 
'pe of TV should be allowed in the 
)urtroom. The lawyers and wit- 
esses would play up to TV, and 
lere would be little things that 
ould occur that shouldn't be picked 
3 and broadcast in the news. It 
ould interfere with the in-court 
anagement of lawsuits and be dis- 
acting to jurors, particularly in sen- 
tional cases. 

From 1965 to 1970 you were on the 
ommittee on Trial Practice and 
echnique. What was gained from 
lis committee work? 
Well, we emphasized the pretrial 
inferences. Some judges still do not 
ilize pretrials, however. 
You were also on the Committee 
I Rules for Admission to Practice in 
e Federal Courts. That committee 
nsidered the possibility of getting 
liformity of admission standards, 
ill uniformity in these rules ever 
me about? 

Well, judges and lawyers are stub- 
rn. They move slowly; they think 
eir way is the best way. They just 
n't want to change, but I think 

eventually we will have uniformity. 
Chief Justice Burger started the 
so-called Devitt Committee that 
studied the quality of advocacy in the 
federal courts. Do you think that 
promoting better advocacy is 

Judge Robert L Taylor 

Yes. Judge Devitt is a fine man, and 
a good judge. As for the Chief Justice, 
I know him well; he argued a case in 
my court when he was a practicing 
lawyer. It was a case involving an Oak 
Ridge dispute, probably in the early 
fifties. He did a fine job— he is a great 
Chief Justice, in my opinion. 

Both the Mandel and the Kerner 
cases were of national interest and 
received considerable attention; they 
were both emotional cases. Did you 
dislike going into foreign districts to 
try emotional and sensitive cases? 

No. The Chief Justice appointed me 
to try the Governor Kerner case. He 


and said to me, "I want to thank you 
for the fair trial you have given the 

It must be difficult for you to see 
people in emotional situations like 
that— to see the concerned and wor- 
ried families in the courtroom. 

Yes, it is. When I sentenced Mandel 

he had members of the clergy and 

many other friends in the courtroom. 

What were your observations of 

Judge Kerner? 

Well, actually, when I handled his 
case, though we had never met, he 
referred to my father. It was emo- 
tionally disturbing to try a former 
governor and a circuit judge. He 
impressed me very much and 
appeared to be a good man. General 
Westmoreland testified as a character 
witness for him. When Judge Kerner 
referred to my father in his state- 
ment, I could have broken down 
myself; he was really doing some 
reminiscing. But it broke my heart. 
That probably was the toughest 
case you ever had? 

Yes, one of the toughest cases I 
ever tried. He was the only active 
judge that had ever been tried up 
until that time. 

Isn't it kind of difficult. Judge, to 
sit in judgment of your peers? One 
judge in a like situation commented, 
"It's just another case." 
I disagree with that. 
Did you know it would be a hard 
case to try, emotionally and in other 
ways, when you got the assignment? 

"Some of my best friends turned against me on account of 
the way I ruled in segregation cases." 

also appointed me to the Governor 
Mandel case. Both cases had to be 
tried. I wa& aware of the interest and 
notoriety, but while it was sometimes 
disruptive to the personnel in the 
court, we managed to handle it. The 
press were persistent, but coopera- 

What was the hardest part of the 
Mandel case? 

Mandel was an intelligent man. His 
wife came up after he was convicted 

Yes, I did. Sure I did. 

Did you try to get out of it? 

No. I just took it. 

Would you comment on the very 
first segregation case in Tennessee 
that you tried? 

I thought somebody would have to 
admit me to the hospital. In the court- 
room I had blacks sitting on the right 
side and whites on the left side. They 

See TAYLOR, page 6 



TAYLOR, from page 5 

selected their seats themselves. Some 
of my best friends turned against me 
on account of the way I ruled in 
segregation cases. They never for- 
gave me and never will. It was terrible 
and very emotional. 

You let the parties design their 
own plan? 

Yes. They designed a plan for all 
students, regardless of race, to attend 
neighborhood schools. It was a good 
plan and has withstood the test of 
time. During the trial I had my tele- 
phone disconnected because I was 
getting calls at home. I also received 

doctrine— that was in the early fif- 
ties. Then there was the trial of a 
racist in Clinton, a man who beat up a 
Baptist minister walking children to 
school. Then there was the Knoxvilk 
case, where 1 refused to order busing. 
I am known now as "the Knoxville 
City School case judge." In the Goss 
case they kept coming back into court 
with various interpretations, various 
things that had evolved. It was a 
grade-a-year plan and it was fairly 
palatable to the community. There 
were some interpretations that had 
to be defined over the years, as I 
recall. So that was one continuing 
case — it was open. 

"Sentencing was always hard for me, and it got harder 
and harder." 

many letters. I tried to act like a judge. 
I decided to investigate one writer 
and found that he was a cousin of my 
former law partner; he never forgave 

Did you have concern for yourself 
and your family at home? 
I did then. 

Did you have U.S. marshal 

No, that service was not available 
to federal judges then, but I had 
assistance from an FBI agent who 
lived near me. 

Didn't you worry about your fam- 
ily, though? 

Yes, I did. It was a different day 
then, though. You know, I believe 
that might have warranted a request 
for security, but they really weren't 
into that sort of thing back in those 

But as I remember, in the Knox- 
ville school case, the main objection 
you found was the failure of the plan 
to permit black students to get tech- 
nical training. They didn't have the 
same opportunities for technical 
training as white students did. Did 
they then change that? 

There were three desegregation 
cases. In the first one, I ruled against 
desegregation, based on state laws 
and on the separate-but-equal 

Did you have any thoughts about 
asking an outside judge to come in? 

No. I was the judge. I was not going 
to run away from it. 

How do you feel about settle- 
ments? Before you tried a case that 
might take six weeks, did you call 
counsel in and say, "Have you people 
talked settlement?" 

I do all I can to settle every case 
pending in this court. And I tell law- 
yers that society favors compromise, 
favors settlement. Now I say, "You 
men who are mature lawyers can set- 
tle this case better than the court 
can. And I want you to try. Now, if 
you can't, then I will try it. I'm here to 
try these cases and I'll try them. But I 
want to urge you to exercise every 
effort toward an amicable settle- 
ment." And I get many settlements in 
that way. 

Some judges feel that a judge 
shouldn't try the case if that judge 
participated in the settlement pro- 
cess. You didn't have the luxury in 
the years when you were the only 
judge. Did that bother you— 
participating in the case from begin- 
ning to end, including settlement? 
Not a bit. 

One judge has suggested that fed- 
eral judges should have some kind of 
sabbatical leave, so that they would 

have a time when they could leave 
their court to reflect on a given sub- 
ject; to travel; or just to rest during a 
period of at least six months to a 
year. Would you approve of that? 

No. I believe a judge must work. A 
judge should approach his tasks with 
a high degree of responsibility, not as 
an onerous, everyday chore. A district 
judge has a duty to the public to per- 
form with promptness and responsi- 
bility, and must not subordinate this 
duty to his personal desires. 

What if they feel they are just a 
little weary, and they want to take 
some time off? 

Well, that's all right if they can keep 
up with their dockets and they can do 
that without hurting the public, the 
lawyers, or the litigants. Then, if 
there's time for rest, all right; other- 
wise, just continue to work on the 
bench or in chambers. 

See TAYLOR, page 7 



The Chief justice 
of the United States 

judge Daniel M. Friedman 

Uiiiteii States Court of Appenh 

for the Feiiernl Circuit 

judge Arlin M. Adams 

United States Court of Appeals 

for the Third Circuit 

Chief Judge Warren K. Urbom 

United Slates District Court 

District of Nebraska 

Chief judge Howard C. Bratton 

United States District Court 

District of New Mexico 

judge A. David Mazzone 

United Slates District Court 

District of Massachusetts 

judge Martin V.B. Bostetter, jr. 

United States Bankruptcy Court 

Eastern District of Virginia 

L. Ralph Mecham, Director 

Administrntive Office of the 

United States Courts 

Federal judicial Center 

A. Leo Levin, Director 

Charles W. Nihan, Deputy Director 

Fourth Circuit Filings 
Drop Again 

The number of cases filed in the 
Fourth Circuit declined by 3 per- 
cent during the 1983-84 statistical 
year, 'the circuit's annual report for 
1984 shows. The period surveyed 
ran from July 1, 1983, to June 30, 

The decline represents the 
second consecutive year in which 
filings dropped. In the same period, 
the number of appeals terminated 
rose 7.5 percent, after dropping 14 
percent in the previous 12-month 
period. Pending appeals dropped in 
1983-84, by 7.2 percent. 

Filings in the circuit's district 
courts, however, rose 4.9 percent 
during the 1983-84 statistical year. 
Civil filings rose 6.6 percent, while 
criminal filings dropped 2.3 

Bankruptcy filings in the circuit 
declined 15.4 percent from the pre- 
vious 12-month period. 

^YLOR, from page 6 

Did you ever take vacations? 

I'm not proud of this, but I never 

id a vacation in my life. 

How about pay. Judge? Many 

dges have recently left the system 

cause of salary considerations. Do 

u feel you are well paid? 

Well, I'm paid enough to live on. If I 

it wanted the pay I wouldn't be a 

ige. I'm a judge because I wanted to 

've if I could and "abide by the 

ok" before I die. That's the reason 

I a judge— not for the money. I 

ide much more practicing law. 

len I came on the bench, I was 

iking over $30,000 a year. As a fed- 

il judge I was paid $15,000. 

Did you ever put a time limit on 

il argument? 

r'es— about 20 minutes. In opening 

'y would make a very brief state- 

nt; but in closing arguments, I 

tched that closely. 

Do you let the lawyers participate 

he voir dire process? 

Jo. I do it all myself. 

)ne of the criticisms of our legal 

tem in this country is related to 



Roger J. Miner, U.S. Circuit Judge, 

2nd Cir., June 25 
Roger L. Wollman, U.S. Circuit Judge, 

8th Cir., June 25 
James M. Rosenbaum, U.S. District 

Judge, D. Minn., June 14 
Stanley Marcus, U.S. District Judge, 

S.D. Fla., June20 
Thomas E. Scott, U.S. District Judge, 

S.D. Fla., June 20 
Joseph J. Farnan, Jr., U.S. District 

Judge, D. Del., June 24 
Edmund V. Ludwig, U.S. District 

Judge, E.D. Pa., June 24 


Richard H. Mills, U.S. District Judge 

CD. 111., June 25 
Roger G. Strand, U.S. District Judge, 

D. Ariz., June 25 
John M. Walker, Jr., U.S. District 

Judge, S.D.N.Y., June 25 


Walter K. Stapleton, U.S. Circuit 
Judge, 3rd Cir., May 8 


Murray M. Schwartz, Chief Judge, D. 

Del., May 8 
Donald D. Alsop, Chief Judge, D. 

Minn., May 20 


Abraham D. Sofaer, U.S. District 
Judge, S.D.N.Y., June 9 

The So 


The publications listed below may be of interest 
to The Third Branch readers. Only those pre- 
ceded by a checkmark are available through the 
Center. When ordering copies, please refer to the 
document's author and title or other description. 
Requests should be in writing, accompanied by a 
self-addressed, gummed mailing label, preferably 
franked (but do not send an envelope), and addressed 
to Federal judicial Center, Information Services, 
1520H Street, N. W.. Washington, DC 20005. 

Anderson, John R., and Paul L. 
Woodward. "Victim and Witness 
Assistance: New State Laws and the 

plea bargaining. Do you do any plea 
bargaining— or do you believe in it? 

No. But if a lawyer wants to do it, 
that's fine. I stay out of it; I don't 
believe that the judge should partici- 
pate in it. 

I understand that the judge who 
preceded you told you during a dis- 
cussion on sentencing, "Don't worry 
about it; it will get easier." Did it? 

No. Sentencing was always hard 
for me, and it got harder and harder. 

What's the hardest kind of 

Well, it's not easy for me to sen- 

System's Response." 68 Judicature 221 

Christensen, A. Sherman. "The 
Next Step: A Jurisprudence of Legal 
Advocacy?" 1984 Utah Law Review 671. 

Committee on Corrections. "Can 
Our Prisons Become 'Factories with 
Fences'? " 40 Record of the Association of 
the Bar of the City of New York 298 (1985). 

Feinberg, Wilfred. "The Office of 
Chief Judge of a Federal Court of 
Appeals." 53 Fordham Law Review 369 

Gibbons, John J. "The Antitrust 

Jurisprudence of the Third Circuit." 

40 Record of the Association of the Bar of the 

See SOURCE, page 8 

tence anybody. I don't care whether 
he's a bank robber or some small 
offender, it's hard for me to send him 
to the penitentiary. I have talked to a 
lot of those people who were 
incarcerated— people like that affect 

Do you worry about it at night? 

No. When I sentence them in the 
courtroom, that's it— I turn it off. No 
good comes from thinking about it; I 
don't want to think about it anymore. 
The late Judge George Taylor, my 
predecessor— no kin— taught me 
that. ■ 




SOURCE, from page 7 

City of New York 198 (1985). 

Goldberg, Arthur J. "Escobedo and 
Miranda Revisited." 18 Akron Law 
Review 177 (1984). 

Goldberg, Arthur J. "Regulation of 
Hostile Tender Offers: A Dissenting 
View and Recommended Reforms." 
26 Corporate Practice Commentator 585 

Lambros, Thomas D. "The Judge's 
Role in Fostering Voluntary Settle- 
ments." 29 Villanova Law Review 1363 

Nejelski, Paul, "Supplements to 
Trial: A Court Administrator's 
View." 29 Villanova Law Review 1339 

Posner, Richard. The Federal Courts: 
Crisis and Reform. Harvard University 
Press, 1985. 

Re, Edward D. "State of the Court: 
The United States Court of Interna- 
tional Trade— Three Years Later. "58 
St. John's Law Review 687 (1984). 

Re, Edward D. "International 
Trade Law and the Role of the Law- 
yer." 26 Corporate Practice Commentator 
487 (1985). 

Van Kamp, Julie. State Courts and 
Law-Related Education. Wake Forest 
University, 1985. 

Wald, Patricia M. "Negotiation of 
Environmental Disputes: A New 
Role for the Courts?" 10 Columbia 
Journal of Environmental Law 1 (1985). 


July 29-30 Judicial Conference 
Committee on the Operation 
of the Jury System 

July 30-31 Judicial Conference 
Committee on Court Adminis- 

Aug. 7-9 Seminar for Magistrates 
of the Sixth, Seventh, and 
Eighth Circuits 

Aug. 19-20 Judicial Conference 
Advisory Committee on Codes 
of Conduct 

Aug. 23-24 Judicial Conference 
Committee on the Budget 





Vol. 17 No. 8 August 1985 

The Federal Judicial Center 
Dolley Madison House 
1520 H Street, N.W. 
Washington, DC 20005 

Official Business 

Postage and 

fees paid 

United States 











Congressman Robert A. Young 

,^^ubcommittee Chairman Favors Buying 
^c^ver Leasing of Public Buildings 

B^is month's interviewee is Congressman 
^rt A. Young (D-Mo.), whose work as 

j^^\hairman of the House Subcommittee on Pub- 

^ lie Buildings and Grounds directly affects 

courthouses and facilities occupied by federal 

judges. The decisions of this subcommittee go 

^^he parent House Committee on Public 

.Q^Worb and Transportation, and the subcom- 

? mitUe's recommendations carry great weight. 

^"ij^ this interview, the congressman explains 

Ny the ^iew process, how the subcommittee 

' (r&^ ""'^ ^^^ ^^ ^"^ sf/ecffi to serve on 

Congressman Young, who is serving his 
fifth term in the House, has a reputation as a 
strong supporter of federal construction of 
office space, as opposed to long-term leases, 
and he frequently travels to personally inspect 
courthouses and their facilities. 

Congressman Young began his political 
career on the state level by serving in both the 
Missouri House of Representatives and the 
Missouri Senate. This background, and his 
experience as a builder, made him a natural 
choice for membership on the House Public 
Works and Transportation Committee. 

Every two years, the Judicial Con- 
ference recommends additional 

Seminar Scheduled 
for New District Judges 

The next seminar for newly 
appointed district judges will be 
held from Oct. 21 to 26, Center 
Director A. Leo Levin and Continu- 
ing Education and Training Direc- 
tor Kenneth C. Crawford have 
announced. All seminar sessions 
will be held at the Center's Dolley 
Madison House in Washington. 

The traditional reception for the 
new judges and their families will 
be held on the day preceding the 
opening of the seminar. The pro- 
gram also includes a black-tie 
dinner at the Supreme Court on 
Oct. 24. 

Congressman Robert A. Young 

judgeship needs to Congress. Simul- 
taneously, the Administrative Office 
of the United States Comts and the 
General Services Administration 
commence preliminary assessia"«?nts 
of increased space needs for the 
requested judgeships. When an 
omnibus judgeship bill is reported 
from either coingiessional judiciary 
committee, cost estimates are pre- 
pared that include estimated expen 
ditures for space. Would you describe 
the role your sx-bcommittee plays in 
this process? 

Once any new judges are appointed 
or the courts need increased space, 
they usually go to the General Servi- 
ces Administration, i think we have 
five regions throughout the whole 
country, and when those bills look 
like they are going to pass, then GSA 
has to get busy to try to find some 
space for the new courts. When they 
determine that the cost for new space 
exceeds $500,000, they must get a 
prospectus made up and submitted to 
our Public Buildings and Grounds 
Subcommittee; then, after we hold a 
hearing, GSA presents testimony to 
See YOUNG, page 4 

Four Circuit Chief Judges 
Highlight Rising Caseloads 
At Appellate Conferences 

Plans to deal with the staggering 
increase in judicial caseloads must be 
based on the assumption that the 
number of cases won't decline, at 
least two chief circuit judges said at 
separate circuit conferences recently. 

"The flood of cases is not going to 
abate," said Chief Judge John C. God- 
bold of the Eleventh Circuit, after 
noting the steps his court had taken 
to increase case terminations and 
reduce the number of pending cases 
and the time it takes to decide an 
appeal. Courts will be forced to "seek 
better -and more efficient ways of 
doing our work," he added. 

Rather than recite annual statis- 
tics. Judge Godbold had a five-page 

St! rimary of the court's vital ctairicticc 

distributed to the audience as he 
spoke. It depicted the court's rising 
i-aseioad in (.sar graphs and pie charts, 
as well as in statistical tables. "Do not 
be intimidated" by the material. Judge 
Godbold told his audience. "I will take 
you by the hand and lead you through 
it." He did so in fewer than 900 


One hurdle to mcreased efficiency. 
Judge Godbold said, is that the 
p:ecedeni-b ised sy--ten-i of deciding 
cases spills over irto the management 
methods judges use. 

We "tend to do things the way they 

have been done before We live with 

See CASELOADS, page 7 

Inside. . . 

ABA Acts on 

Judicial Evalution p. 3 

Many Courts' Caseloads 

Rise Again p. 3 

Four New FJC 

Publications p. 7 


2 <*i* 


CASELOADS, from page 1 

one foot in the present and one in the 


The cure for that kind of behavior. 
Judge Godbold continued, is "to ask 
ourselves regularly: Why do we do 
this in this manner?' 'Could we do it 
better?' 'Do we need to do it at all?' " 
One possible way to break with 
established practice, and thus save 
time. Judge Godbold said, is to write 
less, and do it faster. 

"I want each word [I write] to be 
polished and to shine," he noted. "But 
in a proper scale of values for case 
deciders pressed by too many cases, 
maybe this emphasis on style and 
perfection is wrong." 

Judge Godbold also suggested that 
district courts might rely less on the 
written word. An example of writing 
overuse, he said, was a habeas case 
where a side issue— whether the tes- 
timony of the state trial judge should 
be taken live or by deposition or 
affidavit — produced four sets of 
briefs, punctuated by two written 
motions for extensions and two writ- 
ten extension orders. The issue was 
decided eight months after it was 
raised. "The dispute could have been 
solved in 10 minutes, by calling the 
lawyers in and having the judge 
decide it." 

"If a district court is drowning in 
paper," he said, the court will have to 
ask itself if that has happened 
"because the judges permit it, or 
require it, or find themselves unable 
to break free of the quicksand." 

Chief Judge James R. Browning of 
the Ninth Circuit also started with 
the proposition that "the constantly 
rising volume of litigation will not go 


Published monthly by the Administrative 
Office of the US Courts and the Federal judi- 
cial Center, inquiries or changes of address 
should be directed to 1520 H Street, N.W., 
Washington, DC 20005 

Alice L O'Donnell, Director, Division of Inter- 
ludicial Affairs and Information Services, Fed- 
eral judicial Center. 

away." He noted that in the last quar- 
ter century, the caseload of most fed- 
eral judges has doubled or tripled, 
despite increases in the number of 

"Thus far," he said, "the difference 
has been bridged. . .primarily by the 
adoption of innovative techniques. 
But the upward trend in filings con- 
tinues unabated. The problem will 
not go away. We must continue to 
develop more efficient ways of man- 
aging our affairs— through greater 
decentralization, improved organiza- 
tion, better planning, improved case 
management, vigilant monitoring of 
the processing of caseloads, more 
effective use of advancing technol- 
ogy, development of workable alter- 
natives to the judicial resolution of 
disputes. And we must do this in such 
a way that management does not 
intrude upon the performance by 
judges of their essential task of judg- 
ing, but instead frees them to judge 
more effectively." 

One radical change that would 
have a dramatic timesaving effect- 
discretionary review in the court of 
appeals— is being circulated for com- 
ment by the Ninth Circuit Judicial 
Council's senior advisory board, 
Judge Browning said. He also noted 
the widespread efforts in courts 
throughout the circuit to promote 
alternative dispute resolution 

"The 'good old days' are gone," 
Judge Browning concluded. "They 
will never return again. An ever- 
growing share of our people are seek- 
ing to protect their interests and 
vindicate their rights in federal court. 
If the benefits our society derives 
from the federal court system are to 
survive, we cannot assume that any 
of our practices are beyond 

Chief Judge Spottswood W. Robin- 
son III of the District of Columbia 
Circuit also noted the relentless 
increase in that court's caseload. 
Among the steps implemented to 
handle the crush, he reported, were a 
civil appeals management program 
and a screening program to detect 


Sept. 4-7 Tenth Circuit Judicial 

Sept. 5-8 Second Circuit Judicial 

Sept. 8-13 Seminar for Newly 
Appointed Bankruptcy Judges 
Sept. 9-11 Regional Seminar for 

Probation Officers 
Sept. 9-13 Video Orientation for 
New Probation/Pretrial 
Sept. 11-13 Seminar for Magis- 
trates of the Fifth and 
Eleventh Circuits 
Sept. 16-19 Video Orientation for 
Newly Appointed District 
Sept. 16-19 Regional Seminar for 

Probation/Pretrial Officers 
Sept. 16-20 Video Orientation for 
New Probation/Pretrial 
Sept. 17-18 Judicial Conference of 

the United States 
Sept. 17-19 Regional Seminar for 

Probation Officers 
Sept. 23-27 Video Orientation for 
New Probation/Pretrial 
Oct. 2-4 Juror Management 

jurisdictional problems earlier in the 
appellate process. 

Chief Judge Harrison L. Winter of 
the Fourth Circuit noted at his 
court's circuit conference that "the 
caseload. . .after a brief respite, is 
again on the rise. "The court has been 
successful, he said, in eliminating 
"bottlenecks" in the appellate pro- 
cess. That has meant thaf'the supply 
of cases mature and ready for argu- 
ment rose sharply during the last 12 

The load has required 15 judges a 
month, and since the circuit has only 
11 active judges, and two senior 
judges "who continue to work sub- 
stantially full time," the gap has been 
filled by district judges in the circuit 
who serve by designation. ■ 


Chief ofAO Bankruptcy 
Division Appointed 

Francis F. Szczeb.ik has been named 
chief- of the Bankruptcy Division of 
the Administrative Office. 

The appointment was announced 
in lune by loseph F. Spaniol, |r., 
former AO deputy director. 

Mr. Szczebak, 
who has held a va- 
riety of posts at 
the AO since 1<?78, 
assumed his new 
post in luly. He is a 
graduate of Defiance College in De- 
fiance, Ohio, and Suffolk University 
Law School, and holds an LL.M. de- 
gree from C.eorge Washington 
University. ■ 

Filings Up Again in 
Most Appellate and 
District Courts 

A large majority of the courts of 
appeals received more cases this year 
than last, an Administrative Office 
report shows 

This report, Fedeml judicin! Workload 
StntisHcs. prepared by the AO's Statis- 
tical Analysis and Reports Division, 
covers the 12-month statistical year 
ending last March 31. It shows that 
the Federal Circuit had the largest 
increase in new cases in the period 
surveyed, a rise of 150 percent. The 
court's terminated cases rose by 40 

The second-largest increase was in 
the District of Columbia Circuit, 
where 33 percent more cases were 
filed than in the previous period. 

The Second, Third, Fifth, and Sev- 
enth Circuits all reported slight 
decreases in new cases filed for the 
12-month period. Terminations did 
not equal filings in the appeals courts. 
Excluding the Federal Circuit, termi- 
nations rose 1.5 percent and filings 
were up 6.4 percent. 

The report also found that the 
number of civil cases filed in all the 
district courts rose by 3.3 percent 
during the period studied. Thecourts 

Judicial Evaluation Guidelines Approved by 
ABA House of Delegates at Annual Meeting 

Before journeying to London to 
meet with the membership of the 
Law Society of England and Wales, 
members of the American Bar Asso- 
ciation met in Washington, DC, to 
consider pending issues, including 
some of significance to the federal 

Starting in 1982, a major effort was 
launched by the ABA to develop 
guidelines for evaluating state and 
local judiciary. The redrafting of 
these guidelines, after extensive 
meetings and debates for the next 
three years, emphasized that they 
were not meant to be hard rules for 
judicial performance or conduct, or a 
substitute for polls, but, rather, 
guidelines for an evaluation process. 
This was necessary, the special com- 
mittee on evaluation of judicial per- 
formance said, to assure fairness and 
to accomplish the ABA's goal — high- 
quality performance by judges. The 
committee developed redrafts to 
meet objections of both lawyers and 
the judiciary after failing to achieve 
approval at the midyear meeting of 
the House of Delegates last February, 
and the revised guidelines were 
approved in July. 

A proposal that the guidelines 
include federal judges was defeated 
after the Conference of Federal Trial 
Judges argued that the federal judi- 
ciary is already specifically covered by 
the Judicial Conduct and Disability 
Act of 1980, as well as by procedures 

terminated 12.5 percent more civil 
cases than they did in the earlier 
period. The number of criminal cases 
filed in the district courts rose 8.3 
percent in the period, more than 
offset by an 8.9 increase in termina- 
tions of criminal cases in that same 

Filings in the bankruptcy courts 
rose 1 percent during the period, 
while terminations increased by 6 
percent. ■ 

established by the Judicial Confer- 
ence of the United States. 

Class actions again had the atten- 
tion of the House when the sections 
of litigation and antitrust law pushed 
to amend rule 23 of the Federal Rules 
of Civil Procedure. One of 40 propos- 
als would amend the rules relating to 
requirements for certifying class 
actions and would allow federal 
judges to use their discretion in 
excluding individuals from a class. 
Opponents of aspects of these pro- 
posals believe that the changes sug- 
gested would allow cases to be 
certified as class actions that would, 
under present rules, be disallowed. 
The Antitrust Law Section has con- 
sistently opposed this change. The 
House took no action but did autho- 
rize the sections to present their 
recommendations directly to the 
Advisory Committee on the Rules of 
Civil Procedure. 

Chief Justice Burger attended both 
the Washington and London ses- 
sions, in London, where programs 
were designed for the common inter- 
est of both the United Kingdom and 
the United States, several issues were 
discussed and vehemently debated by 
representatives of the ABA and the 
Law Society. Eliciting the most inter- 
est was the discussion of interna- 
tional terrorism, presided over by 
former vice president Walter Mon- 
dale. Other panelists included Bri- 
tain's home secretary, Leon Brittan, 
FBI Director William Webster and his 
counterpart in England, Scotland 
Yard Chief Sir Kenneth Newman, 
and counsel to the State Department 
Abraham Sofaer, a former federal 
judge in the Southern District of 
New York. The panelists and many in 
the audience agreed that immediate 
and drastic steps must be taken toend 
terrorism and to prevent repetition 
of recent incidents such as the hijack- 
ing of a TWA plane in Athens. 

See ABA, page 8 



YOUNG, from page 1 

our subcommittee and then, usually, 
following the recommendation of 
GSA, we proceed with allowing them 
to go ahead and get the additional 

In many instances in the past 
decade, Public Works Committee 
approval or denial of the requested 
authorization for new space has 
taken years. Is there any way to expe- 
dite the process? 

Through the new chairman of the 
subcommittee. Each chairman does 
different things on a priority basis. 
They run their subcommittees differ- 
ently, and when I became the chair- 
man of this subcommittee three 
years ago, and Clay Shaw, from Flor- 
ida, became the r.mking minority 
member, we agreed that we would do 
everything we possibly could to make 
the subcommittee as effective as it 
possibly could be. The additional help 
of Mr. Shaw on the subcommittee 
because he is a lawyer and former 
mayor of Fort Lauderdale, Fla., gives 
us a pretty good insight into the prob- 
lems. My background is in the con- 
struction business so they don't have 
to have a bunch of maps to tell us 
about a court or about how to get the 
thing built. So we have made the pro- 
cess move a lot faster, in my judg- 
ment, than in the other years that 1 
have been hereon the full committee. 
Are the members of the committee 
selected or appointed by the speaker 
because of any special background? 
Not necessarily. When we are all 
elected, we are asked by our respec- 
tive party caucus chairmen what 
committees we would like to serve 
on, and I think Mr. Shaw's main com- 
mittee is the Judiciary Committee 
because he is a lawyer My main com- 
mittee is Public Works and Transpor- 
tation because of the jurisdiction we 
have over water, aviation, transpor- 
tation, and then the public buildings 
section So automatically I thought I 
could do more good for my area. My 
second choice is science and technol- 
ogy, which is considered a nonmajor 
committee But I have been very 

interested in nuclear energy and the 
use of fossil fuel. So that all fits in 
pretty well. My area has McDonnell- 
Douglas, Emerson Electric, Mon- 
santo, and Mallenkrodt Chemical 
Co., and a lot of the research and 
development comes through the 
Science and Technology Committee. 
Those, then, are two naturalcommit- 
tees for me, particularly as they relate 
to the middle part of the country and 
the things that are important in my 

Does your whole subcommittee 
meet en banc? 

Yes, but in a subcommittee like 
this, because it doesn't necessarily 
attract headlines, it's Mr. Shaw and 1 
most of the time. But we call out and 

capital-improvements budget, where 
you set aside $40 million to build a 
new state office building so that you 
are not in leased space. One of the 
things we have talked about is that 
GSA starts seeing the building needs, 
then they think, "Well, it's easier and 
it hardly shows up in the budget togo 
out and lease space." We've just never 
been very comfortable when you take 
a look at a 20-year lease that is going 
to cost the government $40 million to 
$50 million at the end of that 20-year 
period and all you have is rent 
receipts. It's hard now, particularly in 
the budget crunch we have all the 
time, but we're fighting constantly to 
get more general revenue money so 
that we can have GSA build a build- 
ing and move the people out of leased 

"We've just never been very comfortable when ... a 20- 
year lease is going to cost the government $40 million to 
$50 million [and] at the end . . . all you have is rent 

get the members to attend if we thmk 
they have an interest in a specific 
matter. But it is really more of a 
housekeeping type of activity. It's 
very important, and I am sure that 
when we are through you will realize 
that this is a very important subcom- 
mittee, but if you ask most of the 
members they would hardly recog- 
nize what the subcommittee does. 
When we found out the number of 
federal buildings that we have under 
our jurisdiction, we realized it was 
incredible. We are paying rent of $1 
billion a year for leased space in com- 
mercial buildings. Now if that doesn't 
shake the public up, 1 don't know 
what will. But Mr. Shaw and I feel 
that if we can get Uncle Sam to buy 
these buildings or if we get him to 
lease them for 10 years with an 
option to buy them after the end of 10 
years, it becomes a part of the federal 
inventory and we get out of paying 
these ridiculously high lease costs. 
Most of the state legislatures have a 

space. So that's kind of the thing that 
Mr. Shaw and I are thinking about— 
whether we can accomplish that. It's 
a big process and will take many 

The Public Buildings Act of 1959 
includes language providing that 
approval of the House committee 
would not be necessary for "any 
alteration and acquisition author- 
ized. . the estimated maximum cost 
of which does not exceed $200,000." 
That amount was increased to 
$500,000 in 1972, 13 years later. Is it 
now timely, in view of the high 
degree of inflation, to substantially 
raise this amount again? 

1 have no problem with that. We 
had talked about raising it to $1 mil- 
lion before they'd have to get our 
approval, but I don't know of any- 
body who has really complained to us 
about it. It's just that with all the 
other things we have to do we just 
really haven't had time to address it, 
but 1 would have no problem with 



that. I don't think it hurts to have us 
take a look at those sorts of appropri- 
ations, though, so the $1 million 
seems kind of small. Just so they don't 
start moving it where the legislature 
doesn't have some control. But I 
would have no basic problem increas- 
ing that amount because of inflation 
and things like that to $1 million or 
any other figure that would seem 

Once a prospectus has been 
approved, how is it funded? 

That's not really part of my busi- 
ness, but I would assume that most of 
this would go right on to the appro- 
priate House appropriations subcom- 
mittee, and in this particular 
situation Congressman Neal Smith 
from Iowa is the chairman of the Sub- 
committee on Commerce, Justice, 
State and Judiciary. He looks at that. 
He recently saw some figures on 
some of the prospectuses and he 
thought we were not getting much 
for our dollar on a couple of the items 
in the Washington area. 1 think he felt 
that CSA could have reached a better 
agreement with the lessors, and I 
understand he just released the funds 
on one particular building because he 
just thought that the price was too 
high. So he had his staff reevaluate 
that lease, and I assume that they fig- 
ured out that was about all they could 
do. At least there is that sort of check 
on what we do, but the money would 
come from the appropriations 

Do you work closely with the 
House Appropriations Committee? 

Closely enough. Maybe there 
should be a closer relationship 
because they're paying the bills and 
we're authorizing the leases. 

I understand that GSA forwards 
all prospectuses for a given fiscal 
year for all three branches of govern- 
ment in January of each year. How do 
you determine when you will con- 
sider a specific prospectus, and do 
you consider all of the judicial 
branch prospectuses at the same 

The staff look over the prospec- 
tuses before I ever see them, and they 

kind of cull them out — the ones that 
they think would need a closer review 
or at least should be brought to the 
subcommittee members' attention. It 
works out that way, and we do not 
consider all the judicial branch pro- 
spectuses at one time. A lot of the 
judiciary is in federal buildings. That 

"I've established an open- 
door policy with GSA so 
they are able to come in 
and go over those items 
that are really critical." 

is very, very helpful. You've got small 
towns where the building is old or 
something like that— that's when we 
get involved. Under my chairmanship 
I've established an open-door policy 
with GSA so they are able to come in 
here and make an appointment and 
go over those items that are really 

Is your subcommittee constituted 
in such a way that emergency action 
can be taken if needs are critical? 

Yes, and we work very closely with 

If GSA simply does not have suffi- 
cient money to complete a necessary 
building, can your subcommittee 

Yes. We can move on an emergency 
basis because our staff is rather small 
and GSA has already gathered 
together the information from the 
agencies. So our subcommittee 
doesn't have to go back out in the 
field and make a determination of 
how many employees there are, and 
whether they are using the guide- 
lines set by the president to keep 
within 135 square feet per employee. 
Generally, that's the figure the presi- 
dent has asked us to keep to, and so 
they have all that documentation 
ready for us and then we can recheck 
it if we want. I think we've had a good 
relationship, particularly as a Demo- 
crat working with a Republican 
administration. The heads of the 

GSA, when they are appointed, usu- 
ally come in and we have a talk, and I 
think we understand each other right 
from the start. I'm not hard to talk 
with. We are very accessible — as 
much as we can possibly be— and 
then I think that if they don't have 
sufficient money, we can make a case 
with the appropriate appropriations 
subcommittee, and then we can also 
help them make a case before the 
Office of Management and Budget. 

Have you .ever had really strong 
differences with GSA, say, over 
whether something was too 

When 1 first came in, during the 
Carter administration, I was not 
chairman. I became chairman when 
President Reagan became president 
in 1981, so 1 don't know how the rela- 
tionship with the subcommittee was 
before that, but we've had a good 
relationship with GSA and we dis- 
agree with them on many things. 
Now, were the 20- and 25-year leases 
signed back with Carter and Ford and 
Johnson? I don't know because I 
didn't think I had to go back that far, 
but GSA just started bringing in lease 
after lease with 20-year expiration 
dates and I said there's no way, unless 
it is an absolute emergency, that I'll 
approve or authorize any 20-year 
lease. Bring me something else back. 1 
prefer five- and at the maximum 10- 
year leases. That would be the maxi- 
mum of what we are approving right 
now, a 10-year lease, and we keep 
asking them to try and get options to 
buy the building. 

With the idea that it would give 
you another review? 

No. We try to encourage building 
new buildings or buying existing 
buildings. That's our goal. We could 
authorize $500 million tomorrow on 
new buildings in San Francisco, Oak- 
land, Houston, Dallas— some of the 
areas where we are paying such high 
rents per square foot. That would be 
one of my goals— to have the admin- 
istration in power give us more 
money to have GSA build new build- 
See YOUNG, page 6 



YOUNG, from page 5 

ings. We have to change the act. I 
think that there is a building fund, 
and I think it's only about $100 mil- 
lion this year, and all they are author- 
izing is the building of three border 
patrols. My $60 million annex out in 
St. Louis, where the Army records 
center burned back in 1973, and 
where all the Army records are 
kept— they have come up with a 
proposal to build an annex to store 
the restored records. So [then-OMB 
director) David Stockman gave them 
very little money for new buildings. 
We have the authority to override 
OMB but that doesn't mean the pres- 
ident will let the agency spend the 
funds. But at least at this point we are 
getting along with them the best we 
can. But we could sure use a lot more 
money in the capital building fund, 
and I guess that's the bottom line on 

"We have the authority 
to override OMB but that 
doesn't mean the presi- 
dent will let the agency 
spend the funds." 

How much of a staff do you have to 
handle what must be a vast amount 
of paperwork and call for consider- 
able expertise? How is it organized? 

The staff director has been here 
longer than 1 have. She is considered 
the expert on the GSA budget and 
the housing needs. So I depend on her 
quite a bit. I think the only personal 
staff member that I have is Vicki 

We also have a subcommittee 
secretary. The minority has the same 
setup. So Mr. Shaw has the same 
number of people to work for him 
that I have. Among the six of them 
they do all the work. There is no 
organizational chart. 1 don't know if 
we would do better by having 16 
rather than three. 

You have hearings out in the field? 

Yes. This subcommittee could be 
gone from Washington all the time — 
and 1 think it would be beneficial to 
the taxpayers— but you have to make 
roll call. 

The judicial branch, like other 
entities in the government, now pays 
rent to GSA. Is it a waste of time and 
money to have one agency paying 

1 don't know the answer to that 
question. With GSA being the 
government's landlord there is an 
economy of scale. Meaning they are 
so large they can bargain with a land- 
owner more effectively because they 
are not just moving in agroupof peo- 
ple. If you have 150 judges trying to 
get space for themselves and their 
staffs, they're all off on their own 
different agendas. If they have to 
adhere to GSA, the GSA person has 
more clout to deal with the landlord. 
Plus GSA does all the maintenance 
and they are more cost-effective 
because they are larger and they do 
all of the rental and the housekeeping 
as well. It seems to be about the only 
system that can work — that GSA has 
to charge the tenant out of its own 
fund because those funds are coming 
from another appropriation process. 
Do you pay rent here? 
No. Just for supplies and things like 
that. In the Capitol, Congress does 
not pay rent. In fact, we own the 

Do you ever get calls or questions 
directly from the judges? 

There is a proposed courthouse 
and federal building in Los Angeles 
that we have approved, and some of 
the judges are not completely happy 
with the housing that they might 
have in the future. They are going to 
build in that area a new federal court- 
house for federal employees. The 
judges don't want to leave the old 
courthouse but we've agreed with 
the chairman of the subcommittee on 
appropriations, who is from Los 
Angeles, that it won't be that incon- 
venient to the judges to have two dif- 
ferent buildings that they have to 
operate under, because it is my 
impression that the older, more 

Congreisman Robert A. Young 

senior judges will stay in the older 
facility in downtown L.A. and the 
newer judges will move into the new 
facilities. So 1 think their concern is 
not well-founded. I can understand 
their wanting all to be in one building 
but it just doesn't seem possible to 
work it out. We've had correspon- 
dence from one judge and we've ans- 
wered and just said we disagree. 

I have had a phone call from the 
Chief Justice of the United States, 
Warren Burger. He wants a new 
administrative office building for 
consolidation of all of the administra- 
tive employees of the judicial branch. 
They are in about nine different pla- 
ces throughout the whole Washing- 
ton area. So I agreed with the Chief 
Justice and I agreed that we ought to 
build them a new building. So we 
passed that out of my subcommittee 
to the full committee and it is now 
waiting final action in the House of 
Representatives. It's going to be the 
newest federal building after the 
Library of Congress and the Hart 
Senate Office Building. It will be the 
latest one in the Capitol complex. 

A chief ludge, John F. Nangle, came 
to Washington to ask for improve- 
ments at the federal courthouse in St. 
Louis. And being from St. Louis I was 
very familiar with the courthouse 
and could understand some of the 
problems He felt they were subject 

See YOUNG, page 7 


YOUNG, from page 6 

to unsafe practices. One thing in par- 
ticular is where you come in off an 
alley and there is an elevator going 
up — not a public elevator, but an ele- 
vator where you bring supplies in — 
and that's where they bring the 
prisoners in. So here you have a judge 
on an elevator. They are bringing a 
prisoner in. He's probably going to 
sentence him in the next 15 or 20 
minutes. That made no sense to me. 
The elevators are slow and it seemed 
a very bad security risk. 

How about the public elevators? 
Can't the judges use those or would 
that be worse? 

Well, then they are out in the front 
with the general public. Seeing the 
judge, someone might say, "Don't be 
mean to my son" or something like 
that. So I think they need something 
different. Last year we approved a 
prospectus and allocated :p9.5 million 
to improve the conditions at that 
courthouse and the improvements 
were a new judges' entrance and the 
new courtroom. And we put in a new 
fire sprinkler system. The building 
had been built in the early 1930s by 
the WPA. Good building. And repairs 
to the heating and the air condition- 
ing system. 

Going through different courts 
throughout the country, I have been 
concerned about the security at the 
entrances, to try to make sure that 
our buildings are protected from ter- 
rorists. So we insisted that ail of the 
new buildings that are being built 
have better security systems. 
And you inspect for that? 
We were in Fort Lauderdale about a 
year ago when the biggest drug bust 
in heroin that DEA had ever made 
coming in and out of one of the South 
American countries took place. I was 
surprised with what I thought was 
the lack of security for those agents 
who were holding the drugs to pre- 
sent to the judge as the judge was try- 
ing this case of these two people who 
had been caught with the drugs. It 
seemed to me that the building 
should have been more secure. So we 

Four New Publications Available from Center 

The Center recently published 
Altoriwy Fee Petitions: Suggestiom for 
Aiiministrntion aiui Management, by Tho- 
mas E. Willging and Nancy A. Weeks. 

Building on Prof. Arthur Miller's 
seminal report. Attorneys' Fees in Class 
Actions (Federal Judicial Center 1980), 
the authors use a case-management 
perspective to review cases, statutes, 
local rules, and other materials 
affecting judicial management of 
attorney fee petitions. 

The report follows a three-part 
approach to the fee application pro- 
cess, covering establishment of 
guidelines at the pretrial phase, the 
fee applications— including the steps 
involved in applying the lodestar 
method — and consideration of alter- 
native approaches to the troublesome 
problem of simultaneous negotiation 

worked with GSAand that security is 
being tightened up in Fort Lauder- 
dale. It just didn't make sense that 
there wasn't better security. 

Who goes with you? Do you just 
pop in unannounced? 

Staff, but not necessarily. I've done 
it on my own, but it's no witch hunt 
we're holding, and I think we get a lot 
more out of it if we have the office 
that's responsible for it present and 
we can see the faulty things on our 
own. So we can work closely with 

Have you ever walked into an 
office and seen something that you 
thought was rather outlandishly 
expensive, unnecessary, or very elab- 
orate appointments to an office- 
something you felt was needlessly 

Truthfully, in the short time that I 
have been chairman, the answer 
would be no. I just can't think of any- 
thing that surprised me— that the 
administrator of a court or the fed- 
eral marshal had any extra adorn- 
ments in their office or anything like 
that. 1 just can't think of anything. I'm 
sure there is, but nothing that has 
been brought to my attention. ■ 

of attorney fee issues and the merits 
of the litigation. With regard to the 
pretrial phase, the authors explore 
alternative uses of nonjudicial per- 
sonnel to handle routine aspects of 
the fee application process. They also 
discuss techniques for streamlining 
the repetitive aspects of managing 
attorney fee applications and dis- 
putes, such as use of standardized 
formats to simplify decisions about 
market rates and use of local rules to 
establish a standard process for dis- 
covery and settlement. 

A new edition of The Sentencing 
Options of Federal District judges is avail- 
able now for distribution. 

This work, by Anthony Partridge 
of the Center's Research Division, 
was published in 1979 and last 
revised in June 1983. The current 
revisions reflect recent legislative 
changes— such as the repeal of the 
Youth Corrections Act and enact- 
ment of the Fine Enforcement Act — 
as well as administrative and case-law 
developments. The new edition is 
current to April 30, 1985, 

Copies of the work will be dis- 
tributed to district judges, full-time 
magistrates, probation officers, and 
public and community defenders, as 
well as to other persons in the judicial 
branch who have requested previous 
editions. Copies will also be pro- 
vided to the Department of Justice 
for the use of government attorneys. 

Another recent publication is Visit- 
ing judges in Federal District Courts, by 
Donna Stienstra of the Center's 
Research Division, prepared to assist 
courts that occasionally need the 
temporary services of a judge from 
another district or appellate court. 

Based on information gathered 
from clerks in 18 district courts, this 
report describes the methods some 
districts use to ensure that a visiting 
judge's stay is satisfying and produc- 

See REPORTS, page 10 

,v;>; . 




The Source 

The ln!.liiule for Court Mnnitgeniciit lichl 
its Vlh ^nuiunting ceremonies jor llie 
Court Executive Development Progrnm at 
the Supreme Court in Jhup. Pictured is the 
Chief justice congratulnting George Ray. chiet 
deputy clerk (N.D. Cnil. one of five federal 
employees in the progrivn. 

ABA, from page 3 

Another program, staged after 
months of planning, "Justice for a 
Generation," focused on what ABA 
President John Shepherd said was "a 
special responsibility to deal with 
issues unique to our time." Topics 
such as foreign investments in the 
United States, practicing law abroad, 
computers, alternative dispute reso- 
lution, juries, lawyer competency and 
bar admissions, comparative costs of 
litigation in England and the United 
States, and conducting discovery 
abroad were discussed. American 
participants and paper writers 
included former federal judge Marvin 
E. Frankel (S.D.N.Y.), U.S. Magis- 
trate Wayne BraziKN.D Cal.), senior 
federal circuit Judge Malcolm R. Wil- 
key (D.C. Cir.), and Center Director 
A. Leo Levin 

Discussed at length during a meet- 
ing at the Notre Dame Law School 
Center in London was what is being 
done to assure continuing judicial 
education, where it is being done, and 
whether it is being done effectively. 
Participants from Italy, Ireland, and 
Australia, as well as those from the 

The puhlimtions listed helow may he of interest 
to The Third Branch readers. Only those pre- 
ceded hy a checfimark are availahle through the 
Center. When ordering copies, please refer to the 
document's author and title or other description. 
Requests should he in writing, accompanied hy a 
self-addressed, gummed mailing Inhel. prefernhly 
franked Ihut do not send an envelope!, and addressed 
to Federal judicial Center. Information Services. 
I 520 H Street. N. W., Washington. DC 10005. 

American Bar Association, justice for 
a Generntion. 1985. 

Committee on Corrections. "Can 
Our Prisoners Become 'Factories 
With Fences'? " 40 Record of the Associa- 
tion of the Bar of the City of New York 298 

Feinberg, Wilfred. "The Office of 
Chief Judge of a Federal Court of 
Appeals." 53 Fordhcim Law Review 369 

Friendly, Fred W. (moderator). 
"The Federal Judiciary: What Role 
Politics?" (Transcript of panel discus- 
sion at American Judicature Society 
meeting). t)8 judicature 330 (1985). 

Gibbons, John J. "The Antitrust 
Jurisprudence of the Third Circuit." 
40 Record of the Association of the Bar of the 
City of New York 198 (1985). 

Goldman, Sheldon. 'Reaganizing 
the Judiciary: The First Term 
Appointments." 68 judicature 313 


"The Insanity Defense" In Annals of 

the Awencnn Academy of Political and Social 
Science (vol. 477). 1985. 

Johnston, David F. "The Equal 
Access to Justice Experiment." 32 Fed- 
eral Bar News & journal 176 (1985). 

McGowan, Carl. "The Administra- 
tive Conference: Guardian and Guide 
of the Regulatory Process." 55 George 
Washington Law Review 67 (1984). 

Re, Edward D. "Legal Writing as 
Good Literature." 59 St. John's Law 
Review 211 (1985). 

Report of the Proceedings of the judicial 
Conference of the United Stales (March 
6-7, 1985). 

Simon, Roy D., Jr. "Rule 68 at the 
Crossroads: The Relationship 
Between Offers of Judgment and 
Statutory Attorney's Fees." 53 Uni- 
versity of Cincinnati Law Review 889 

Steele, Walter A. "The Honorable 
Jean S. Breitenstein— A Profile." 62 
Denver University Law Review 1 (1985). 
Stolz, Barbara Ann. "Congress and 
Criminal Justice Policy Making: The 
Impact of Interest Groups and Sym- 
bolic Politics." 13 Journal of Criminal 
justice 307 (1985). 

Wald, Patricia M. "The Freedom of 
Information Act: A Short Case Study 
in the Perils and Paybacks of Legislat- 
ing Democratic Values." 33 Emory Law 
journal 649 (1984). 

United States and England 
exchanged ideas, and questions came 
from members of the audience, who 
represented other nations. Lord 
Chief Justice Lowry of Northern Ire- 
land delivered the keynote address. 
Director Levin described the work of 
the Federal Judicial Center and Jus- 
tice Florence Murray (S. Ct. R.I.), the 
operations of the National Judicial 
College. Talbot D'Alemberte repre- 
sented the American Judicature 
Society, and Samuel J. Roberts, 
former chief justice of the Pennsylva- 
nia Supreme Court, described the 
work of the ABA Legal Education and 
Admissions to the Bar Section. ■ 

Rep. Rodino to Receive 
Award at Court Conference 

Chief Justice Warren E. Burger 
will present an award to Congress- 
man Peter W. Rodino, Jr., chairman 
of the House Judiciary Committee, 
at the second annual Judicial Con- 
ference of the United States Court 
of International Trade. The confer- 
ence will be held on Oct. 23, Chief 
Judge Edward D. Re has announced 
It will take place at the World Trade 
Center in New York City, begin- 
ning at 9 a.m. 

Those interested in attending 
should register before Sept. 20 by 
contacting the Office of the Clerk, 
U.S. Court of International Trade, 
One Federal Plaza, New York, N.Y. 



Ferdinand F. Fernandez, U.S. District 

ludge, CD. Cal., |uly 19 
Stephen H. Anderson, U.S. Circuit 

ludge, 10th Cir., |uly 23 
Ralph B. Guy, |r., U.S. Circuit ludge, 

6th Cir., luly 23 
C.len H. Davidson, U.S. District ludge, 

N.D. Miss., July 23 
Robert B. Maloney, U.S. District 

ludge, N.D. Tex., |uly 23 
David B. Sentelle, U.S. District Judge, 

W.D.N.C, Iuly25 
Brian B. Duff, U.S. District ludge, 

N.D. 111., Aug. 1 


Wayne E. Alley, U.S. District ludge, 

W.D. Okla, July 10 
Robert C. Broomfield, U.S. District 

ludge, D. Ariz , luly 10 
Claude M. Hilton, U.S. District ludge, 

E.D. Va., luly 10 
lames D. Todd, U.S. District ludge, 

W.D. Tenn., July 10 
Donald E. Walter, U.S. District ludge, 

W.D. La, July 10- 
I. Frederick Motz, U.S. District ludge, 

D. Md., July n 
Roger I. Miner, U.S. Circuit ludge, 

2nd Cir., |uly IP 
Roger L. Wollman, U.S. Circuit Judge, 

8th Cir., luly 19 
Richard H. Mills, U.S. District ludge, 

CD. 111., luly 19 
Roger C. Strand, U.S. District ludge, 

D. Ariz., luly 19 
lohn M. Walker, |r., U.S. District 

ludge, S.D.N.Y., |uly 19 


Charles C Lovell, U.S. District ludge, 

D. Mont., May 10 
Howell Cobb, U.S. District ludge, 

ED. Tex., May 17 
Joseph H. Rodriguez, U.S. District 

ludge, D.N. I., May 22 
Mark L. Wolf, U.S. District ludge, D. 

Mass., May 24 
Sam B. Hall, |r., U.S. District ludge, 

E.D. Tex., May 28 
C.eorge F. C.unn, |r., U.S District 

ludge, ED. Mo., May 2P 


Edith H. Jones, U.S. Circuit ludge, 

5th Cir., May 30 
Ann C Williams, U.S. District ludge, 

N.D. 111., |une3 
Kenneth F. Ripple, U.S. Circuit ludge, 

7th Cir., lune 10 


Donald I. Porter, Chief ludge, D.S.D., 

luly 1 
Maurice B. Cohill, |r.. Chief ludge, 

W.D. Pa., luly 2 

Senior Status 

Miles W. Lord, U.S. District ludge, D. 

Minn., May 20 
Myron H. Bright, U.S. Circuit ludge, 

8th Cir., lune 1 
lack Miller, U.S. Circuit ludge. Fed. 

Cir., lune 6 
Leland C Nielsen, U.S. District ludge, 

S.D. Cal., lune 14 
Andrew W. Bogue, U.S. District 

ludge, D.S.D., luly 1 
Lee P. (.agliardi, U.S. District ludge, 

S.D.N. Y., luly 17 


Thomas P. Thornton, U.S. District 
ludge, E.D. Mich., luly 1 

Harry Phillips, U.S. Circuit ludge, 6th 
Cir., Aug. 3 


Less Time. The time convicts spent 
in state prisons dropped to a record 
low in 1982, the Justice Department 
has found. 

The department's Bureau of Justice 
Statistics reported that the median 
confinement was 1.8 years. It based 
its findings on an examination of the 
sentences of 157,000 released prison- 
ers in 29 states and the District of 
Columbia in 1982, the most recent 
year for which records are available. 

Less Crime. Serious crime dropped 
again last year, but violent crime rose 
slightly, the FBI reported in its annual 
crime survey. 

AH serious crimes — murder, rape, 
robbery, theft, and burglary- 
dropped for the third consecutive 
year, to the lowest level since 1978. 
There were 11.8 million such crimes 
in 1984. 

Violent crime increased by 1 per- 
cent. The number of rapes and 
assaults rose, but murders and rob- 
beries declined. 

Fm<r Vahshuu mki'i vis.hd the Mnal judnial Ccnhr for n dny-h„g bruim^ on Center .ulnnlu's 
.luring a „x-dny Inp to Wmlnnglon recently. The guests were (I. to r.l Chief Justice Javui Iquhol of the 
Lahore H,gh Court, Chief justice Abdul Kuresh, of the Sind Court, justice Mi Qoz,lhnsh of the 
Peshnwnr High Court, and Justice Muninwwor Mirzn of the Boluchistnn High Court. Eoch of the courts 
IS the highest in its stole. 


10 wlw 


REPORTS, from page 7 

tive for both the visitor and the court. 
It covers issues such as selecting and 
preparing the visiting judge's case- 
load, arranging for his or her travel 
and accommodations, providing an 
orientation to the court, and the 
impact of a visitor on court staff and 

Appended to the report are a list of 
10 "essential ingredients" for a visit 
and two visiting judge checklists 
developed by one district court. 

The Center recently published The 
Roles of Magislrntfs: Nine Case Studies, by 
Carroll Seron. The report, a follow- 
up to an earlier Center study on the 

same topic {The Roles of Magistrates in 
federal District Courts, F)C 1983), takes 
a detailed look at nine district courts' 
use of magistrates for pretrial case 
management. Three approaches to 
the use of magistrates are identified; 
(1) In some courts, magistrates play 
the role of peers, or "additional 
judges," in court administration and 
case management; (2)inothercourts, 
they are viewed as specialists who 
become experts in particular areas of 
the docket, such as Social Security or 
prisoner cases; and (3) in still other 
courts, they are considered members 
of a team and are given discretionary 
responsibility for the pretrial phases 
of case processing. 

The report also examines the 
extent to which the outcome of mag- 

istrates' work is questioned by law- 
yers, finding that magistrates' 
reports and recommendations gener- 
ally are not challenged. The author 
concludes that magistrates are mak- 
ing a significant contribution to case 
management and conservation of 
judicial time, and that this contribu- 
tion can be further enhanced if the 
bar and court staff are educated 
about the potential roles of 

Copies of these reports can be 
obtained by writing to Information 
Services, 1520 H St., N.W., Washing- 
ton, DC 20005. Enclose a self- 
addressed, gummed label, preferably 
franked (but do not send an enve- 
lope). ■ 





Vol. 17 No. 9 September 1985 

The Federal Judicial Center 
Dolley Madison House 
1520 H Street, N.W. 
Washington, DC 20005 

Official Business 

Postage and 

fees paid 

United States 









lief Judge Re Discusses International 
ade Court's Jurisdiction and Procedures 

'/(' suhjcil of this luoith'i i)itcrvicw (5 
t Jiiiige Eiiwiinl D. Re, loho hm been 
f Jiiii^foftlie U.S. Court of hitcninHo)ial 
'(' iiiicv its creatiou in IQSO. He prc- 
ly wm Chili }ud;fc of the U.S. Cu^toun 

ntiiiition to 1 7 ycnrs of jiiditial cxpc- 
.', Chief }ut1<(c Rc'i distiuifiiishcd record 
ies service as Chairman of the U.S. 
^n Claims Settletiieiit Coiinnissiou 
l-bSI and as Assistant Secretary of 
for Educational and Cultural Affairs 
S-d9l and 1 7 years' membership on the 
York City Board of Higher Education. 
ief Judge Re holds nine honorary degrees 
dition to his B.S., LLB., and ]S^. 
•s. and in T-180 he was named Distin- 
fd Professor of Law by St. John's Uni- 
\i School of Laiv. He has written 
ively on brief loriting. opi}iion writing, 
umerous subjects in the international 

u have been the Chief Judge of 
Jnited States Court of Interna- 
I Trade since it was created. 

\y -^"tj judge Edward D. Re 


Why was this court created? 

As you know, the United States 
Court of International Trade is a 
national Article III court. The, geo- 
graphical jurisdiction of the court 
extends throughout the United 
See JUDGE RE, page 4 

nmission on Bicentennial of Constitution 
eases First Report, Holds Public Hearings 

September 17, the 198th anni- 
ry of the signing of the Consti- 
T, the Commission on the 
tennial of the United States 
titution released its first report, 
leld public hearings to learn of 
ctivities and recommendations 
' public and private agencies 
/ed in bicentennial planning, 
hough preparations for the 
tennial were well under way 
e the Commission was formed 
e, the Commission, one speaker 
would "impart a sense of pur- 
and direction to the nation's 
lemoration of the bicentennial" 
' Constitution. 

h the Commission's report, 
I 12 days prior to the statutory 
ne, and those who testified at 

the hearings stressed the educational 
opportunity the bicentennial pre- 
sents the nation— a chance for"a his- 
tory and civics lesson for all of us," in 
the words of the Chief Justice, who is 
Chairman of the Commission. The 
occasion, one speaker said at the 
hearings, calls for "cerebration as well 
as celebration." 

The Commission's report, inviting 
the participation of "[e]very state, 
city, town, and hamlet, every organi- 
zation and institution, and every 
family and individual," outlined a 
three-phase effort, tracking the 
developments of two centuries ago. 
Emphasis from now until 1987 will be 
on the events leading up to the con- 
stitutional convention and the Con- 

Judicial Conference 
Recommends 47 More 
Bankruptcy Judgeships 

The Judicial Conference, at its 
semiannual meeting in September, 
urged creation of 47 additional bank- 
rupty judgeships. It voiced support 
for pending legislation to provide for 
reimbursement of visiting judges' 
actual expenses. The Conference 
agreed to recommend to Congress 
that it not pass legislation providing 
commuting expenses for judges and 
legislation requiring clerks of court to 
collect criminal fines. 

Attorney General Edwin Meese 
addressed the Conference and prom- 
ised that the Reagan Administration 
would move quickly to fill judicial 
vacancies. At that time there were 86 
vaoahcies— 66 on the district courts 
and 20 on the courts of appeals. 

The Conference's recommenda- 
tion on additional bankruptcy judge- 
ships, which will be transmitted to 
Congress, calls for appointments in 
all circuits except the First, Second, 
and District of Columbia. The largest 
number of new judgeships would go 
to the Central District of California. 
(See box, page 7.) 

Proposed legislation disapproved 
by the Conference included a bill that 
would authorize reimbursement of 
all federal judges for travel between 
their home and their official duty sta- 
tion. The other pending bill disap- 
proved would have required court 
See CONFERENCE, page 7 

Inside. . . 

Asbestos Litigation 
Burdens to Be 

Parole Commission 
Issues Revised 

p. 2 

p. 3 






BICENTENNIAL, from page 1 

stitution itself. The Commission 
urged designating September 17, 
1987, as a national holiday. 

The year 1988 will emphasize the 
ratification debates. The year 1989 
will focus on the creation of the new 
government and prepare the way for 
a celebration of the Bill of Rights. 

Activities reported at the hearings 

• More than 160 awards totaling 
more than $11 million, which the 
National Endowment for the 
Humanities has allocated to bicenten- 
nial projects. 

• Plans by the National Archives, 
Library of Congress, and National 
Park Service for celebrations on key 
dates, as well as exhibits and accom- 
panying public education. 

• PROJECT '87, a joint venture of the 
American Historical Society and the 
American Political Science Associa- 
tion, which has for almost ten years 
been serving as a national bicenten- 
nial clearinghouse as well as sponsor- 
ing numerous educational programs. 

• The American Bar Association's 
"We the People" bicentennial 

Bicentennial activity to date has 
been characterized in large measure 
by scholarly symposia and academic 
research, as well as by summer 
seminars for law school, college, and 
secondary school teachers on teach- 
ing about the Constitution. As 1987 
draws near, activity is moving toward 
a greater level of public education and 
citizen involvement. Various state 
and community organizations, the 



Published monthly by the Administrative 
Office of the US. Courts and the federal |udi- 
cial Center. Inquiries or changes of address 
should be directed to 1520 H Street, N W , 
Washington, IX 20005 

Alice I O'Donnell, Director, Division of Inter- 
ludicial Affairs and Information Services, Fed- 
eral ludicial C enter 

most important of which is the "We 
the People 200" effort, based in Phila- 
delphia, are planning citizen- 
education forums. The hearings 
revealed more than 25 video and 
radio programs— from documentar- 
ies on the founding to contemporary 
analyses of key constitutional 
provisions — in various stages of plan- 
ning or production. 

The Commission's report also 
recommended certain changes in its 
authorizing legislation to increase 
the Commission's fund-raising 
capacity, as well as provide it addi- 
tional staff. At this point the resour- 
ces available to the Commission are 
far fewer than those available in the 
planning of the bicentennial of the 
Declaration of Independence in the 

The Center is distributing copies of 
the Commission's report to all federal 
judges. Others who wish copies can 
obtain them by sending a self- 
addressed label, preferably franked, 
to the Information Services Office, 
1520 H Street, N.W., Washington, 
DC 20005. ■ 

1986-87 Judicial 
Fellows Program 

Chief Justice Burger has 
announced the 1986-87]udicial Fel- 
lows program. This program, pat- 
terned to some extent after White 
House and congressional programs, 
brings into the judicial branch 
highly talented young professionals 
who have an opportunity to make 
contributions to the work of the 
Supreme Court, theFederaljudicia! 
Center, and the Administrative 
Office of the U.S. Courts. Each year 
one of the fellows is designated the 
Justice Tom C. Clark Fellow, a 
memorial arranged by Justice 
Clark's law clerks and friends and 
other supporters of the program. 

Application forms and further 
information about the program can 
be obtained from the office of the 
Administrative Assistant to the 
Chief Justice, Supreme Court of the 
United States, Washington, DC 
20543. Applications should be 
mailed by Nov. 8 to assure 

Asbestos Litigation Burdens Subject of New 
Research to Be Conducted by FJC 

The Federal Judicial Center is 
undertaking new research into the 
burdens imposed by asbestos litiga- 
tion in some district courts. The Cen- 
ter plans a systematic analysis of the 
costs and effectiveness of alternative 
procedures for management of 
asbestos cases and other toxic-tort 
litigation. Information will be 
gathered from court records. Admin- 
istrative Office statistics, and inter- 
views with judges, lawyers, clerks, 
and others. 

An FJC report based on a 1984 
asbestos litigation conference noted 
that "case management crises" in sev- 
eral districts with heavy asbestos 
caseloads could be addressed only by 
dramatic changes such as increases in 
personnel or restructuring of the 
court's system of calendaring. The 
report also noted that "|s|tatistics on 

asbestos cases in federal courts fail to 
reflect the burden of those cases in 
some districts and may result in a fail- 
ure to allocate adequate resources to 
courts with heavy asbestos case- 
loads," and it called for further study 
of those burdens. 

The conclusion that drew the most 
attention, however, was that "asbes- 
tos cases have become relatively rou- 
tine products liability cases" that are 
susceptible to traditional case man- 
agement practices, especially the set- 
ting of firm, credible trial dates. 

The new research comes in part in 
response to the report's recommen- 
dations for further study and to con- 
cerns expressed by several members 
of the judiciary that participants in 
the conference did not adequately 
address the question of the burdens 
of managing asbestos cases. ■ 



hird Circuit Issues 
eport on Court-Awarded 
Homey s' Fees 

A Third Circuit task force on 
lurt- a warded attorneys' fees 
commended last month that such 
es be set on a percentage basis in 
ses in which a common recovery 
nd will be created, and that the cur- 
ntly used "lodestar" method for 
mputing awards in some statutory- 
B cases be revised. 
The task force's report, "Court 
-varded Attorney Fees," urged dif- 
rent treatment for cases in which 
mpensation comes out of a com- 
an fund and those in which the suc- 
ssful litigant recovers fees under a 
?-shifting statute. 
Headed by Judge H. Lee Sarokin 
'.N.j.), the task force was asked to 
termine what changes, if any, were 
eded in the current Third Circuit 
?thod of determining the amount 
court-awarded attorneys' fees. 
The Third Circuit has for the past 
cade followed the lodestar method, 
fee under that method is arrived at 
determining the number of hours 
isonably expended on the case and 
jltiplying by an hourly rate. That 
:e is determined by such factors as 
s lawyers' experience, qualifica- 
ns, and reputation. The resulting 
lount — the lodestar — is then 
:reased or decreased by a multiplier 
:tor based on the risk involved in 
? case and the quality of the attor- 
ys' work. 

Most other circuits have adopted 
? Third Circuit test or a similar 
ndard, so proposals to change that 
>thod may have a nationwide 

rhe task force found that the lode- 
r method was not the best one to 
? in cases in which there will be a 
Timon fund. It recommended, 
tead, that the court appoint a fee 
)resentative early in the litigation 
lo would negotiate with the puta- 
e class's attorneys on the class's 
naif to set a fair contingency fee. 
at fee, if approved by the court. 
See FEES, page 8 

AO Director Reports Increases in Court Filings 

Administr<itive Office Director L. 
Ralph Mecham told the Judicial Con- 
ference in September that the federal 
courts' workload increased substan- 
tially again in 1985, with increases in 
virtually all courts and all categories of 

The Director summarized for the 
Conference the AO's annual report, 
which covers the statistical year July 1, 
1984, to June 30, 1985. The annual 
figures show that — 

• Filings in the 12 regional courtsof 
appeals were up 6 percent. 

• Filings in the Court of Appeals for 
the Federal Circuit rose 120 percent. 

• Civil cases in the district courts 
rose 5 percent. 

• District court civil cases in which 
the United States was plaintiff rose 22 

• Criminal cases filed in the district 
courts grew by 5 percent. 

• Bankruptcy filings rose 8 percent. 
In each of those categories, the 

number of cases disposed of also rose 
over the previous year, but not fast 
enough to absorb all of the filing 

The annual report also summarizes 
activity under the Judicial Councils 
Reform and Judicial Conduct and Dis- 
ability Act of 1980. There were 191 
complaints about judges filed in statis- 
tical year 1985, an increase of 8 

U.S. Parole Commission Issues New Guidelines 

The Parole Commission has 
amended its guidelines for treatment 
of youthful offenders and some adult 
offenders. The new proposals were 
published in the Federal Register as final 
rules on Oct. 3. 

Among other significant changes, 
the Commission abolished the sepa- 
rate guidelines for youthful 
offenders — those sentenced under 
the Youth Corrections Act or the 
Narcotic Addict Rehabilitation Act 
and those who were less than 22 at 
the time of their offense. These 
inmates will be subject to the same 
new guidelines as adult offenders 
now are. Offenders of all ages guilty 
of less-severe offenses who are 
judged to be in the better-risk cate- 

gory will fare better under the new 
guidelines, and youthful offenders 
involved in serious crimes will be 
treated more severely than in the 
past, because they will be treated as 

The new guidelines will apply to 
any prisoner whose initial parole 
hearing is held Nov. 4 and after. They 
will also apply to recission and 
revocation hearings held after that 
date. Prisoners involved in interim 
hearings and prerelease record re- 
views after Nov. 3 will be covered 
retroactively by the revised guide- 
lines if the new guidelines are more 

The following table shows the new 
guidelines issued by the Commission: 






ient Factor 

Score 1981) 

Severity of Offense 

Very Good 










eline Rangt 

! (in Months) 

Category One 

< 4 

< 8 



Category Two 

< 6 




Category Three 





Category Four 





Category Five 





Category Six 





Category Seven 





Category Eight* 





'No upper limits are specified because of the extreme variability of the cases within this 

4 # 




JUDGE RE, from page 1 

States. In fact, the court also is autho- 
rized to hold hearings in foreign 
countries. The court's subject-matter 
jurisdiction is exclusive, and includes 
judicial review of civil actions arising 
out of import transactions and fed- 
eral statutes regulating importations. 
The existence of the court ensures 
expeditious procedures and avoids 
jurisdictional conflicts among the 
federal courts. Most important, it 
provides uniformity and consistency 
in judicial decision making regarding 
import transactions, as required by 
Article I, Section 8, of the Constitu- 
tion. It may not be well-known, but 
the provision of the Constitution 
that authorizes the Congress to lay 
and collect taxes, duties, imposts, and 
excises also requires that all duties, 
imposts, and excises shall be uniform 
throughout the United States. A pur- 
pose of the court is to see to it that 
this requirement of uniformity is 

What does the court do that wasn't 
done by the former Customs Court, 
of which you were also Chief Judge? 

The new name more accurately 
describes the court's expanded juris- 
diction and its increased judicial func- 
tions relating to international trade 
disputes. The new court has 
increased subject-matter jurisdiction, 
as well as plenary authority in law 
and equity that wasn't possessed by 
the former Customs Court. This was 
achieved by the Customs Court Act 
of 1980, which created the new court. 
The act conferred expanded subject- 
matter jurisdiction, which now 
includes just about all civil actions 
against the United States, its officers, 
or its agencies that arise out of the 
laws regulating imports. An impor- 
tant provision of the 1980 act made it 
clear that this court has all the pow- 
ers in law and equity of, or as con- 
ferred by statute upon, the district 
courts of the United States. 

So the provision put you on a par 
with the district courts? 

The act conferred upon this court 
all of the powers both in law and m 
equity, possessed by the district 

courts, including the power to grant 
any relief appropriate to the case 
before it. I think it's also important to 
note that the act permits the Chief 
Justice of the United States to assign 
judges of this court to perform judi- 

Cliicf judge Edwnrd D. Re 

cial duties in the courts of appeals of 
the United States as well as in the 
district courts. 

You primarily hear challenges to 
administrative decisions made by 
agencies such as the Customs Service 
and the Treasury Department. Does 
that make your operations more like 
an appellate tribunal than like a trial 

Well, yes and no. Yes, because from 
one standpoint you may say that you 
are appealing a decision of a depart- 
ment or administrative agency. From 
another standpoint, no, because in 
some categories, the cases are heard 
de novo. In other areas, judges of this 
court review administrative action, 
not de novo, but upon the record 
developed before an agency based on 
the usual standards of review applied 
by appellate tribunals. Hence, it may 
be said to be comparable to taking an 
appeal to an appellate court. How- 
ever, it is important to keep in mind 
that the so-called administrative 
records presented to this court are 
not always comparable to the admin- 
istrative records developed under the 
Administrative Procedure Act by 
other agencies whose administrative 
decisions are appealable directly to a 
court of appeals. 

The records presented to us come 

from agencies that perform investi- 
gative rather than adjudicative func- 
tions. Therefore, in this court, much 
judicial time and effort is spent shap- 
ing the record itself and resolvingdis- 
putes among the parties as to the 
record. There are preliminary skir- 
mishes pertaining to the record upon 
which the court is to make its deci- 
sion. The records that we review are 
not always comparable to the record 
that is presented to an appellate 
court. Once we decide a case, the 
question that will be presented to the 
court of appeals— in our case, the 
Court of Appeals for the Federal 
Circuit — is whether this court prop- 
erly reviewed the record before it. 

You mentioned before. Judge, that 
your court has exclusive jurisdiction 
over most of the cases it hears. Can 
you explain why this is so, and 
whether this is better than the situa- 
tion that exists in the tax realm, 
where a plaintiff often has the choice 
of the Tax Court, the U.S. Claims 
Court, or a district court? 

As I mentioned, our work could be 
divided into two types of cases. In the 
first, we try cases de novo in the tra- 
ditional areas of jurisdiction of the old 
Customs Court, deciding whether 
goods that have been imported have 

"The records presented to 
us come from agencies 
that perform investiga- 
tive rather than adjudica- 
tive functions." 

been properly classified or assessed 
for customs duty purposes. These 
cases, by statute, are heard de novo. 
Here, there is a full-blown trial to 
determine whether the imported 
merchandise has been properly clas- 
sified or assessed. In the second type 
of case, we review the administrative 
records of the agencies of govern- 
ment that deal with import transac- 
tions. The case could start with the 
action of the President himself, the 
President's Special Trade Represen- 
tative, the Department of Com- 
merce, the Department of the 

Freasury, the International Trade 
Commission, or, of course, the Cus- 
oms Service. We also hear cases that 
originate with the Department of 
-abor under the Trade Adjustment 
\ssistance program. 

I believe it is best to have those 
ases heard before this court not 
nerely because of expertise, or uni- 
ormity and consistency. Although 
)ur subject-matter jurisdiction may 
)e somewhat specialized, we are a 
;eneralist court which applies gen- 
eral principles of administrative law 
nd equity. In addition to expertise, 
ve have developed efficient and 
xpeditious procedures for the dispo- 
ition of these cases. It is simply good 
udicial administration to have all of 
hese import-related cases heard 
lefore this court. If warranted, we 
nay also grant a jury trial. Of course, 
n the future Congress may wish to 
onsider whether for certain 
isputes — for example, those involv- 
ig penalties and seizures — it would 
e appropriate to have concurrent 

Would concurrent jurisdiction 
vHh the district courts make it eas- 
sr for litigants to litigate closer to 

No. Although the courthouse is 
jcated in New York City, we can 
ear any one of these cases anywhere 
1 the United States. While most of 
ur cases are heard in New York, that 
oesn't prevent us from hearing 
ases in any other city. As a matter of 
act, many of our cases are heard in 
OS Angeles, San Francisco, Chicago, 
louston, Dallas, Washington, Bos- 
3n, and Detroit; and, as I indicated 
arlier, the court is also authorized to 
old hearings in foreign countries, 
o, without any difficulty, we can 
old a trial anywhere in the United 

What is the court's caseload like, 
nd what's happened to it in the last 
!veral years? 

The number of cases filed each year 
■om 1970 to 1980 has decreased. 
Ithough from the standpoint of 
umbers thecasesare fewer, they are 
luch more complex and much more 
fficult. The difficulty and complex- 


ity reflect the great importance of assigns the cases among the nine 

international trade, particularly in judges. This helps accomplish not 

the areas of dumping and counter- only fairness in workload distribu- 

vailing duties. Since 1980 the number tion but also, to a certain extent, 

of filings and the cases assigned to expertise in various areas, and uni- 

each judge have generally been formity and consistency. Except for 

"We can hear. . .cases anywhere in the United States. . . 
The court is also authorized to hold hearings in foreign 

unchanged. So the best I can say is 
that although since 1970 the number 
of cases filed may be fewer, they're 
much more complex and surely 
require more time to be decided. 

Does that mean you could use 
more judge power? 

No, it does not. An indication of 
this is the fact that we have assisted 
the courts of appeals and many dis- 
trict courts whenever we could. 

As the Chief Judge of the court, 
what are your administrative duties? 
Are they similar to those of the 
chiefs of the district and circuit 

Yes. They're just about the same; 
they are very similar to the adminis- 
trative responsibilities of the chief 
judges of the district and circuit 
courts. I think I can best explain those 
duties by referring to the fine book 
published by the Federal Judicial Cen- 
ter, Desk Book for Chief fudges of United 
States District Courts. I've had occasion 
to read it, and found it very valuable. I 
want to congratulate the various 
authors who contributed to that 
book. The chief judge of a federal 
court ultimately is responsible for 
ensuring that the court is adminis- 
tered in compliance with statutes, 
judicial Conference and court poli- 
cies, and Administrative Office regu- 
lations. And in a broader sense I think 
it is the chief judge's duty to ensure 
that the court is administered effec- 
tively and efficiently. 

There is one difference, however, 
between the duties of the chief judge 
of this court and the chief judge of a 
district court. Rather than using a 
random system for the assignment of 
cases, the chief judge of this court 

these differences, the responsibilities 
of the chief judge of this court are 
similar to those of the district courts 
and courts of appeals. 

Do you carry the same load as the 
other judges despite your adminis- 
trative duties? 
Yes, I do. 

Your name is as well-known as the 
author of Brief Wriiing and Oral Argu- 
ment as it is as a chief judge. How did 
you come to be a recognized author- 
ity on those subjects? 

You take me back many years by 
that question. I've always been inter- 
ested in language, writing, and litera- 
ture. For many years I have been 
interested in attempting to improve 
the quality of legal writing, and the 
quality and effectiveness of briefs. 

When I started teaching at St. 
John's Law School in 1947, 1 was 
made the Director of the moot court 
program. In that capacity I organized 
both trial and appellate moot courts. 
As a result, I lectured and prepared an 
outline on the writing of trial and 
appellate briefs. In 1950, Mr. Philip 
Cohen, who is the President of 
Oceana Publications, heard about 
these materials from students at St. 
John's and New York University. He 
asked to see my notes and stated that 
he wished to publish a book on the 
subject. In 1951 there appeared the 
first edition of my Brief Writing and 
Oral Argument. The book has gone 
though many revisions and is now in 
its fifth edition. Oceana had alsopub- 
lished my first book, foreign Confisca- 
tions in Anglo-American Law. 

Has the quality of the briefs filed 

See JUDGE RE, page 6 



JUDGE RE, from page 5 

in your court gone up or down in 
your time on the bench? 

1 think they are better, and for a 
very good reason — I think that law- 
yers are becoming increasingly aware 
of the importance of briefs. I usually 
start talks on brief writing by quoting 
a sentence from the famous case of 
McCulloch V. Mnrylnnd: I say, "When I 
say 'the power to tax is the power to 
destroy,' of whom do you think?" 
The audience will say John Marshall. 
Some may also say McCulloch v. Mary- 
land. I then say, "That's correct, but 
you could also have said that those 
words were inspired by the lawyer 
who wrote the brief for the 'plaintiff 
in error' in that case, and his name is 

presented. 1 regard oral argument as 
a supplement to the brief. Oral argu- 
ment is helpful if counsel answers 
whatever questions the court may 
ask that were not adequately treated 
in the brief. Some oral arguments 
have been most helpful, whereas oth- 
ers have neither helped nor harmed. I 
favor oral argument because it is 
counsel's opportunity personally to 
see and speak with the court. It also 
affords counsel the invaluable oppor- 
tunity to answer whatever questions 
the court may wish to ask. 

You've also lectured on appellate 
opinion writing. What's the state of 
that art today? 

It is improving. As with briefs, we 
are aware of their importance, and 
consciously try to write better opin- 

"Judges receive better briefs if they let lawyers know 
that they need the brief and may indeed rely upon it." 

Daniel Webster." I try to have law- 
yers know that judges, by and large, 
not only look forward to the brief but 
actually need an effective brief. The 
brief is an essential part of judicial 
decision making. 

I believe judges receive better 
briefs if they let lawyers know that 
they need the brief and may indeed 
rely upon it. I think it is counterpro- 
ductive to state that briefs are poor 
and oral arguments are useless. If 
lawyers believe that briefs are 
ignored and not relied upon, and that 
oral arguments are useless, why 
should lawyers spend time and effort 
preparing them? At every opportun- 
ity 1 emphasize that I look forward to 
receiving counsel's brief. I hope that 
the brief will be helpful, and look for- 
ward to the oral argument because 
the court may have some important 
questions that it may wish toask that 
may not have been treated in the 

Is the quality of oral argument 
going up or down? 

Quality to me has to be equated 
with the word helpfulness. I believe that 
a brief is as effective as it is helpful to 
the court in deciding the question 

ions. I have had the privilege of lec- 
turing with Chief Judge Ruggero 
Aldisert, and other very fine judges, 
and believe that a great deal has been 
accomplished by showing that legal 
writing can be good literature. Surely 
legal writing not only can be good 
English but, indeed, must be good 
English. It must be clear, it must be 
accurate, and it must be as brief as the 
subject matter will permit. I am in 
favor of instruction in the opinion- 
writing process, because it also high- 
lights the importance of the opinion 
in memorializing the law. Like other 
forms of art and literary composition, 
there is a definite form to the judicial 
opinion. There should be an intro- 
ductory statement, a statement of 
the question presented, a statement 
of the pertinent facts, an indication of 
the contentions of the parties, a dis- 
cussion of the application of the law 
to the facts, and a conclusion that 
flows logically from the discussion. 

We take the judicial opinion for 
granted. A court or judge cannot 
simply declare, "judgment for the 
plaintiff, X dollars," or "judgment for 
the defendant." In the opinion one 
must explain why. In memorializing 

the law the judge must set forth rea- 
sons why the case was decided in the 
manner that it was. This is a dis- 
tinctly Anglo-American con- 

I lectured on opinion writing at a 
Federal Judicial Center program for 
newly appointed bankruptcy judges 
in September. I stressed that in opin- 
ion writing as in brief writing, a great 
deal of thought must be given to the 
question presented. In writing either 
a brief or an opinion, I would want to 
make sure that I knew what was the 
question presented. 1 would ask 
myself. Did I correctly answer the 
question presented, and did I give 
thought to the relief requested? Was 
the requested relief appropriate, and 
for what reason was it or was it not 
granted? Wecannot forget that it isa 
judicial opinion that we are writing 
rather that a law review article or a 

You were appointed by the Chief 
Justice to chair the Federal Judicial 
Center's Advisory Committee on 
Experimentation in the Law, which 
issued its report four years ago. Your 
Committee's report points out that 
there are dangers associated with 
inadequately justified experimenta- 
tion, uncontrolled innovation, and 
failure to institute needed innova- 
tions. What steps have to be taken to 
ensure that experimentation or 
innovation does not sacrifice 


Innovations must advance the 
cause of justice. In experimentation, 
disparate treatment of individuals 
must be reconciled with fundamental 
legal and ethical ideals. In order to 
avoid misleading results, it is essen- 
tial that experiments be properly 
designed. The Committee report 
indicated the factors to be considered 
before a program of experimentation is 
undertaken. It suggests an analytical 
framework for an administrator to 
use experiments consistent with legal 
and ethical standards. In my opinion, 
the Committee made a valuable con- 
tribution in highlighting the ethical 
problems of program experimenta- 
tions that deserve careful attention 
and sensitivity. • 


Court Representatives, Business Executives Meet 
to Improve Judicial Management in D.C. 

A new program in the District of 
Columbia has already been beneficial 
to the two federal courts here and to 
the District's business world. 

In what Chief Judge Aubrey E. 
Robinson, Jr. (D.D.C.), and District 
Clerk James F. Davey called a "first," 
the Greater Washington Board of 
Trade, the Council for Court Excel- 
lence, representatives of the federal 
jnd local courts, and executives from 
ocal industries met recently to plan 
md sponsor programs aimed at 
wringing together personnel from all 
:hose offices to reach a better under- 
standing of the courts' work and how 
t affects the private sector. It is, 
ieclared Mr. Davey, "a link between 
he private and public sector. If we 
the courts] do a better job, then the 
Jusiness climate is better." 

The Council for Court Excellence 
erved as the initial catalyst in bring- 
ng together court officials and 
•rivate-industry executives. Repre- 
entatives from both groups found 
hat they had similar management 
oncerns. Among the topics they dis- 
ussed were the need to plan well into 
he future and to draft mission state- 
nents and the need for interagency 
taff meetings involving clerks' offi- 
es, U.S. attorneys' offices, and pro- 

bation offices in the local and federal 
systems. Personnel issues were also 
discussed, and the plan is to develop 
motivation programs as well as a 
reward system. An attractive bro- 
chure that explains court procedures 
was suggested to recruit highly quali- 
fied candidates to apply for vacancies. 

Chief Judge Robinson met with the 
groups to express his appreciation for 
their efforts— especially a seminar 
developed and sponsored by corpo- 
rate planners— and told them that 
"the seminar was a rare opportunity 
to address issues sometimes over- 
looked in the day-to-day business of 
the courts and could not have been 
accomplished without [your] sup- 
port. Your efforts will be greatly 

Later this month there will be a 
meeting of all those involved in this 
effort — numbering about 40 — to 
review what has been accomplished 
by five project teams and to decide 
what remains to be done. ■ 

Insurance Open Season Begins 

An open season to enroll in or 
change health insurance benefits 
will take place from Nov. 4 to Dec. 
6, the AO has announced. 

ONFERENCE, from page 1 

erks to collect fines levied under the 
omprehensive Crime Control Act 
f 1984. That act now requires the 
istice Department to collect the 

The expenses-reimbursement leg- 
ation endorsed by the Conference 
ould allow judges assigned to other 
)urts as visiting judges to receive 
:tual expenses no matter how long a 
sit lasted. Visiting judges now 
■ceive actual expenses only if their 
ay is longer than 30 days; other- 
ise, they receive a fixed allowance 
lat may not cover their hotel and 
eal expenses. 

In other actions, the Conference— 
• Approved more than 20 amend- 

ments to the Federal Rules of Appel- 
late Procedure, which will now go to 
the Supreme Court. Many of the pro- 
posed changes are designed to make 
the rules' language gender neutral. 
Rule 30, as revised, would require 
each circuit court to establish a rule 
governing sanctions for appellate lit- 
igation brought in bad faith. A pro- 
posed change to rule 45 would allow 
courts to maintain computerized, as 
opposed to written, dockets. 

• Endorsed legislation pending in 
Congress to authorize membership 
on the Judicial Conference for the 
Court of International Trade. The 
same legislation would allow that 
court to conduct an annual judicial 
conference, as the circuit courts do. ■ 

Request for New 
Bankruptcy Positions 

The 47 new bankruptcy judge- 
ships the Judicial Conference urged 
Congress to create would be dis- 
tributed as shown below. (The 
Conference also authorized its 
Executive Committee to request 
several more bankruptcy judge- 
ships by the end of this year, after 
deciding which districts they should 
be located in.) 

3rd Cir. 
4th Cir. 

5th Cir. 

6th Cir. 

7th Ci 

8th Cir. 

9th Cir. 

10th Cir. 

nth Ci 

D. Md. 
E.D. Va. 

N.D. Tex. 
S.D. Tex. 
W.D. Tex, 

W.D. Ky. 
W.D. Mich. 
E.D. Tenn. 
W.D. Tenn. 

N.D. 111. 
N.D. Ind. 
E.D. Wis. 

E.D./W.D. Ark. 
N.D. Iowa 
S.D. Iowa 
D. Neb. 

CD. Cai. 
E.D. Cal. 
N.D. Cal. 
S.D. Cal. 
D. Idaho 
D. Or. 
E.D. Wash. 
W.D. Wash. 

N.D. Okla. 
W.D. Okla. 
D. Utah 

M.D. Fla. 
N.D. Ga. 
S.D. Ga. 

To have concurrent jurisdiction in 
the Eastern District of Kentucky. 
' To have concurrent jurisdiction 
in the Northern and Southern Dis- 
tricts of Illinois. 


Office of Eighth 
Circuit Executive 
Changes Location 

The Eight Circuit has moved its cir- 
cuit executive's main office from St. 
Louis, Mo., to St. Paul, Minn. 

The change will put the circuit 
executive's main office in the same 
city as the chief judge of the circuit. 

Chief Judge Donald P. Lay, who 
announced the move, also announced 
that Lester Goodchild, the Circuit 
Executive since March 1980, resigned 
last month, and the work of the office 
will be temporarily supervised by 
June L. Boadwine, the Assistant Cir- 
cuit Executive. Mr. Goodchild has 
become Assistant Circuit Executive 
in the Second Circuit. 

Mail to the Eighth Circuit execu- 
tive's office should now be sent to 
Ms. Boadwine at Box 75428, St. Paul, 
MN 55175. The phone numbers for 
that office are FTS or 612/725-7311. 

The vacant circuit executive posi- 
tion will be advertised in the future. 
Judge Lay said. ■ 



Nicholas Tsoucalas, Judge, Court of 

International Trade, Sept. 11 
Laurence H. Silberman, U.S. Circuit 

Judge, D.C.Cir., Sept. 11 
Paul N. Brown, U.S. District Judge, 

E.D.Tex., Sept. 11 
Alan A. McDonald, U.S. District 

Judge, E.D. Wash., Sept. 11 
Henry T. Wingate, U.S. District 

Judge, S.D. Miss., Sept. 11 
Richard H. Battey, U.S. District 

Judge, D. S.D. , Sept. 27 
John A. Fuste, U.S. District Judge, 

D.P.R., Sept. 27 
John S. Rhoades, Sr., U.S. District 

Judge, S.D. Cal., Sept. 27 
Lyle E. Strom, U.S. District Judge, D. 

Neb., Sept. 27 
Bobby R. Baldock, U.S. Circuit Judge, 

10th Cir., Oct. 7 
David R. Thompson, U.S. Circuit 

Judge, 9th Cir„Oct. 7 
Glenn L. Archer, Jr., U.S. Circuit 

Judge, Fed. Cir., Oct. 16 

FEES, from page 3 

would be payable even if the litigation 
were settled quickly — removing the 
incentive under the lodestar method 
to reject settlement offers before 
many hours of legal time have been 

The task force also recommended 
the appointment of a fee representa- 
tive in cases involving the enforce- 
ment of statutory rights in which 
little or no money is at issue. The 
contingent fee would be awarded if 
the litigation were settled. But if the 
case went to trial, the fee would be set 
by the lodestar method, with the fol- 
lowing changes; 

• Developing standardized 
districtwide hourly rates instead of 
litigating the worth of attorneys' 
time on a case-by-case basis. 

• Requiring projections of the 
number of hours needed for a case at 
early pretrial conferences. 

• Modifying the multiplier for- 
mula to reflect the risk, the outcome. 

the petitioning attorneys' contribu- 
tion to a quick or protracted resolu- 
tion, and the delay in receiving the 

Statutory-fee cases that would 
create a large common fund would be 
treated like the other common-fund 
cases, with the agreed-upon fee 
governing even if the case went to 

The task force also suggested ways 
the court can ensure that plaintiffs' 
attorneys can agree on settlements 
and fees with defendants while min- 
imizing the risk that the agreement 
will inflate fees at the expense of the 
settlement funds. 

The report is being published in the 
October 14 advance sheet issue of 
fi'itcnd Reporter id (No. 43), at yellow 
pages 1-49, and in the November 
advance sheet issue of federal Rulei 
Decisions. Copies can also be obtained 
from William K. Slate, Circuit Execu- 
tive for the Third Circuit, 20716 U.S. 
Courthouse, Philadelphia, PA 
19106. ■ 

James L. Buckley, U.S. Circuit Judge, 

Fed. Cir., Oct. 16 
John T. Noonan, Jr., U.S. Circuit 

Judge, 9th Cir., Oct. 16 
Edward R. Korman, U.S. District 

Judge, E.D.N. Y., Oct. 2 
Robert E. Cowen, U.S. District Judge, 

D.N.J. , Oct. 7 
William J, Zloch, U.S. District Judge, 

S.D. Fla., Oct. 9 
Patrick A. Conmy, U.S. District 

Judge, D.N.D., Oct. 16 
Lynn N. Hughes, U.S. District Judge, 

S.D. Tex., Oct. 16 
Albert 1. Moon, Jr., U.S. District 

Judge, D. Hawaii, Oct. 16 
Jane R, Roth, U.S. District Judge, D. 

Del., Oct. 16 


Stephen H. Anderson, U.S. Circuit 

Judge, 10th Cir., Oct. 16 
Ralph B. Guy, Jr., U.S. Circuit Judge, 

6th Cir., Oct. 16 
David A. Nelson, U.S. Circuit Judge, 

6th Cir., Oct. 16 
James L. Ryan, U.S. Circuit Judge, 6th 

Cir., Oct. 16 
Paul N. Brown, U.S. District Judge, 

E.D. Tex., Oct. 16 
Glen H. Davidson, U.S. District 

Judge, N.D. Miss., Oct. 16 
Brian B. Duff, U.S. District Judge, 

N.D. 111., Oct. 16 
Ferdinand F. Fernandez, U.S. District 

Judge, CD. Cal., Oct. 16 
Edmund V. Ludwig, U.S. District 

Judge, E.D. Pa., Oct. 16 
Robert B. Maloney, U.S. District 

Judge, N.D.Tex., Oct. 16 
Alan A. McDonald, U.S. District 

Judge, E.D. Wash., Oct. 16 
Alan H. Nevas, U.S. District Judge, D. 

Conn., Oct. 16 
David Sam, U.S. District Judge, D. 

Utah, Oct. 16 
David B. Sentelle, U.S. District Judge, 

W.D.N.C, Oct. 16 
Stephen V. Wilson, U.S. District 

Judge, CD. Cal., Oct. 16 
Henry T. Wingate, U.S. District 
Judge, S.D. Miss., Oct. 16 


Louis L. Stanton, U.S. District Judge, 
S.D.N.Y., Sept. 10 



Nov. 3-7 First Circuit Judicial 

Nov. 6-8 Regional Seminar for 

Bankruptcy Judges 
Nov. 7-8 Workshop for Judges of 

the Second and Third Circuits 
Nov. 13-15 Workshop forjudges of 

the Fifth Circuit 
Nov. 18-20 Workshop for Judges of 

the Eighth and Tenth Circuits 
Mov. 18-22 Workshops for Clerks 

and Chief Deputy Clerks of 

Circuit and National Courts 

of Appeals 
20-21 Judicial Conference 

Advisory Committee on Civil 

21-22 Seminar for Circuit 

Dec. 2-4 Juror Management Work- 



Positions Available 

Clerk, Tenth Circuit Court of Appeals, 
Denver, Colorado. $52,2c>2 $68,700. 
RiH|uirc-nifnts include 10^' .ulniini^hM- 
livi- rxpi-rii'nn' (i.uv pr.utm- ni.iy he biihsli- 
tiiti'd fi)r .ulministr.itu c (■vpi-ni'iuf: 
lolk-Ki' eiKii.ition am) JfHii'ts m piihlu bii^i- 
nosb, .idministr.Uioii, ,ind I.uv m.iy be 
substituted p.irti.illy fcir neiieial .idniiiiibliM- 
tive experifiue). Send resume (iinj; .ind 
three lopiesl indit.itinK position .ipplitd tor, 
by Nov. 15, to Emory C t^.itjier. Circuit 
Exeiutive, C-428 US Courthouse, Denver, 
CO 8O294, 303/8-14-11 18 or FTS/564-41 18. 

Clerk, U.S. Bankruptcy Court, Eastern 
District of Texas. S.d.iry to $4 1,430, jSP-ll. 
Man.iKes .idministr.itive .utivities of the 
clerk's office .ind oversees perforni.\iue of the 
statutory duties of that offmv Appinaiits 
must have a minnnum of 10 years of progres- 
sively responsible administrative or appro- 
priate professional experience in public service 
or business and a full understandinj; of the 
organi/ational and procedural aspects of 
court management 

Deputy Clerk — Estate Administration. 
Salary to $37,599, ISP- 1 3. Responsible for all 
matters related to nianaKiiig tru?lees AwJ 
trustee-related activities. Must bc' .1 college 
graduate with a degree mi law, business, court 
.idministration, or similar discipline .iiul iiuibl 
nave a minimum of two years of progressively 
responsible management or legal experience 

For both positions, submit resume .ind 
salary hi>tory, by Nov. 12. to Honorable 
tlouston Abel, ludge, US. Bankruptcy Court, 
IVO Box 1448, Tyler, TX 75710, fTS'749- 
6038 or 21 I 597-8432 



Ahovc top, ;;/i/x<' Mornj L. ScurlE.D. La. I, Cluurmau of tlif mcut F]C Sfuinuir lor Ncjvly Appoiiilcil 
Biuikriipliy jiid;^ci, introdiicci iciiiiiuir kchircr Ci'ori^c M. Trcistcr, a iiicmhiT of the California 
Bar and of the faculty of the Unlvvrslty of Southern California law Center. At the senmuir, I. to r., are 
judi^ei Rosemary Gamhardella ID.N.j.f R. Clifford fiilford IN.D. Ala. I, A. jay Criatol IS.D. Fin. I, 
Stacey W. Cotton IN.D. Ga.l, and Francis Conrad ID. Vt.l. 

The Source 

The puhlnations luted hetow may he ot interest 
to The Third Branch renders. Only those pre- 
ceded hy a checkmark are avnilnhle through the 
Center. When ordering copies, please refer to the 
document's author and title or other description. 
Requests should he in writing, accompanied hy n 
self-addressed, gummed mniling label, preferably 
franked I but do not send an envelope), and addressed 
to Federal judicial Center, Information Seri^ices, 
1520H5treet,N.W., Washington, DC 20005. 

Cannon, Mark W., and David M. O'Brien. 
Views Irani the Beinli. Chatham House, 1985. 

Covington, Mai->;arft. "lury Selection: In- 
novative Approaches to Both Ci\il and Crimi- 
nal Liti>;ation." lo .S/. Mary'- Liw fninuil 575 

Dimond, Paul R. "Provisional Review: An 
Exploratory Essay on an Alternative Form of 
Judicial Revieu-." 12 hiaslm^s CoiislitiiUfliinl Law 
Quarterly 201 (1P85). 

V Edwards, Harry T. "Do Lawyers Still Make 
a Difference?" Speech to the State Bar of Mich- 

igan, Sept. 11, 1085. 

\/ Feinberg, Wilfred. "Remarks at the Judicial 
Conference of the Second Circuit." Sept. 6, 

Markey, Howard T. "Ethics Today: Young 
Lawyers and Old Wine." 12 Barrister 55 (Sum- 
mer 1085). 

Mikva, Abner |., "ludge Picking." 10 District 
Lawyer 3d (Sept. 1085). 

Schwartz, Bernard. "Earl Warren as a Judge." 
12 tiii^ti)!^- Ci<n^liliiltoiuil Liw Qiiaytcily 170 

Sessions, William S. "Attorney Competency 
in Federal Courts: The Second Milestone and 
the Challenge Ahead." 32 Federal Bar Neivs i-^ 
journal 285 (1085). 

Stevens, |ohn Paul. "Kidicial Restraint." 22 
.Sum D/<Xii Liw Review 437 (1085). 

Stevens, |ohn Paul. "Professor Edward H. 
Levi." 52 Lluiver>ity ot Clina^^o Law 
Review 200 (1085). 

Torruella, |uan R. "The Supreme Court and 
Puerto Rico." University of Puerto Rico Press, 

Trangsrud, Roger H. "loinder Alternatives 
in Mass Tort Litigation." 70 Cornell Law Review 
770 (1085). 




Grand Jurors to See New Orientation Film 

At its last meeting thejudicial Con- 
ference encouraged district court 
judges to use an orientation film pre- 
pared especially for grand jurors. The 
one-half-hour film is designed to 
familiarize grand jurors with the fed- 
eral court system and their responsi- 
bilities as part of the system. 

Entitled The I^edcrnl Grand jury: The 
People's Pniiel, the film is narrated by 
John Houseman and looks at the 
grand jurors' role largely through the 
eyes of a woman who is summoned to 

The film presents a mock grand 
jury session. The prosecutor explains 
the allowable use of hearsay in such 
proceedings and the need for the use 
of immunity in some situations- 
including one presented in this mock 
hearing. The grand jurors eventually 

decide to indict one of two suspects m 
a bank robbery, but decline to indict 
the other one because of insufficient 
evidence. The foreperson, who has 
served on a previous grand jury, 
explains to the other jurors that if the 
prosecution can find more evidence, 
the suspect may be indicted later. 

Orders for the film should be 
placed directly with the vendor listed 
below. Invoices may be paid from 
each court's consumable-supply allo- 
cation. Further questions can be 
referred to the AO's Office of Gen- 
eral Counsel (FTS or 202/633-6127). 

Norman Carpenter 
MGM Laboratories 
10202 W. Washington Blvd. 
Culver City, CA 90230 

Outline of Cases on 
Bail Laws Available 

The Office of General Counsel in 
the Administrative Office has pre- 
pared an outline of cases interpret- 
ing the Bail Reform Act of 1984. 
This outline has been reviewed by 
the Judicial Conference's Commit- 
tee on the Administration of the 
Criminal Law. 

The Committee members believe 
the outline could be helpful to fed- 
eral judges and magistrates dealing 
with problems that arise under the 
new bail laws and have recom- 
mended that it be made available to 
the courts through the Center. 

To obtain a copy, send a self- 
addressed label, preferably franked, 
to Inter-Judicial Affairs, Federal 
Judicial Center, 1520 H St., N W., 
Washington, DC 20005 





Vol. 17 No. 11 November 1985 

The Federal Judicial Center 
Dolley Madison House 
1520 H Street, N.W. 
Washington, DC 20005 

Official Business 

Postage and 

fees paid 

United States 










:hief Judge Motley Describes Court, Career; Aiiorney Admissions 

eflects on National Impact of Landmark Cases Committee Concludes Study 

Chief Judge Motley 

When Chief Judge Constance Baker 
alley came to the U.S. District Court for 
Southern District of New York in J 966, 
brought to that court many years of expe- 
nce and an educational background that 
U prepared her for the demands of the office. 
teen years later she became Chief Judge of 
t court, one of the largest in the federal 
rl system. 

Service with the NAACP Legal Defense 
/ Educational Fund during the early years 
'ifr career identified her with civil rights 
?s. In addition, she was a vital part of the 

team of lawyers who made legal history in 
1954 with Brown v. Board of 

Chief Judge Motley earned a B.A. degree 
from New York University and an LLB. 
from Columbia, and she has received six 
honorary degrees. Just this year the Judge 
received the first Distinguished Alumna 
Award from the Columbia Law Women's 
Association. When New York University 
conferred an honorary degree upon her in 
1983, they commended her for "brilliant 
mastery of the law . . . and for beneficial 
influence upon the laws of the nation." 

Chief Judge Motley is a former member of 
the New York State Senate and president of 
the borough of Manhattan; she has served on 
the Judicial Conference Committee on Records 
Disposition and currently is a member of the 
Committee on the Administration of the 
Bankruptcy System. 

You've been Chief Judge of New 
York's southern district for three 
years now. What do you see as the 
district's strengths and weaknesses? 

Well, I do not know that I can give 
you a launc|r%list for those two cate- 
gories, bu^x think one of our giieat 

The report of the Judicial Confer- 
ence Implementation Committee on 
Admission of Attorneys to Federal 
Practice, chaired by Chief Judge 
James Lawrence King (S.D. Fla.), was 
released following the fall meeting of 
the Judicial Conference. The commit- 
tee made two major recommen- 

The first recommendation was 
that the Judicial Conference recom- 
mend to the federal courts their con- 
See COMMITTEE, page 2 

James Macklin Named 
AO Deputy Director 

The Supreme Court has appointed 
James E. Macklin, Jr., to be Deputy 
Director of the Administrative Office 


^ ^ 


^ See MOTLEY, page 4 


Civil, Criminal Rules Committees Invite <.V 
Suggestions for Changes in Evidence Rules 

At the last meeting of the Judicial 
[Conference, a decision was made to 
Jsk the Advisory Committee on the 
-ederal Rules of Criminal Procedure 
ind the Advisory Committee on the 
-ederal Rules of Civil Procedure to 
A'ork together to monitor the Federal 
?ules of Evidence and to recommend 
my changes in those rules. The re- 
Jorter to thecriminal rules committee, 
'rofessor Stephen A. Saltzburg, will 
lerve as reporter for the group. The 
lecision to rely upon a combined effort 
)f the two existing committees means 
hat the Advisory Committee on the 

Rules of Evidence, which was dis- 
charged after Congress approved the 
rules in 1975, will not be reactivated. 
Any suggestions for changes to the 
Federal Rules of Evidence are welcome 
and will be considered in the same way 
that changes to the criminal and civil 
rules of procedure are considered, 
albeit by a combined effort of twocom- 
mittees. Suggestions for changes in 
the Rules of Evidence should be sub- 
mitted to James E. Macklin, Jr., Secre- 
tary, Committee on Rules of Practice 
and Procedure, Administrative Office 
of the U.S. Courts, Wash., DC 20544. 

James E. Macklin, Jr. 

of the U.S. Courts. 

Mr. Macklin came to the Adminis- 
trative Office in 1975 following a 31- 
year career in the U.S. Army. His 
Army career included service as 
Chief of theCriminal Law Division in 
the Office of the Judge Advocate 
General and Chairman of the Joint 
Service Committee on Military 

See MACKLIN, page 8 



Seventh Circuit Upholds 
Attorney Admission Rules 

The Seventh Circuit has upheld a 
district court decision approving dis- 
tinct federal standards for admission 
of attorneys to practice in the District 
Court for the Northern District of 
Illinois. Local rules of the court imple- 
menting such standards had been 
challenged by an attorney who con- 
tended that their effect in requiring 
him to meet new standards in order 
to maintain his previous admission to 
practice in the federal court consti- 
tuted a denial of due process. The 
rules were promulgated in connec- 
tion with the court's participation in 
the pilot program authorized by the 
Judicial Conference to implement, on 
an experimental basis, the recom- 
mendatio'ns of the Devitt Committee 
based upon its study of the compe- 
tency of trial lawyers practicing in the 
federal courts. 

The local rules of the Northern 
District of Illinois require attorneys 
to belong to the "trial bar" of the 
court before being allowed to appear 
alone either on behalf of a defendant 
in a criminal proceeding or during 
testimonial proceedings in a civil case. 
To become a member of the trial bar, 
an attorney is required to have four 
"qualifying units" of trial-type expe- 
rience. At least two such units must 
be acquired by participating in actual 

The plaintiff, on behalf of a class of 
attorneys, alleged that thecreation of 
the trial bar for this court in effect 
disbarred him, and that he was 
deprived of his due process right to 
notice and an opportunity to defend 

against such action. 

The court of appeals held that the 
imposition of trial bar membership 
was a proper exercise of the district 
court's rule-making power rather 
than an adjudication of the plaintiff's 
competence as an attorney. 
Moreover, the plaintiff had received 


Published monthly by the Administrative 
Offite of the US Courts and the Federal judi- 
cial Center Inquiries or changes of address 
should be directed to 1520 H Street, N W., 
WashinRton, DC 20005 

Alice L O'Donnell, Director, Division of Inter- 
ludicial Affairs and Information Services, Fed- 
eral judicial Center. 

notice and an opportunity to com- 
ment, the court found, because the 
local bar committee charged with 
implementing some of the Devitt 
Committee's recommendations had 
published the proposed rules and 
invited attorney comment at an open 
meeting. ■ 

Conference at Yale Assesses Procedures, 
Weighs Judges' Options in Processing Cases 

The National Conference on Lit- 
igation Management, held recently at 
the Yale Law School, was attended by 
approximately 150 people, including 
members of the federal judiciary, 
practicing lawyers, and academics. 
The conference attempted a critical 
evaluation of the present status and 
future prospects of civil litigation. 
One of its goals was to "initiate a 
fundamental reassessment of the 
procedural tools presently available 
to the federal judiciary," according to 
conference organizer E. Donald Elli- 
ott, Jr., Professor of Law at Yale Law 
School. Another aim of the confer- 
ence was "to reduce the costs of lit- 

igation by improving the ability of 
federal judges to process major cases 
efficiently," Professor Elliott said. 
The conference was cosponsored by 
Yale Law School, the ABA Litigation 
Section, and the Center for Public 

Among the topics included on the 
conference's agenda were the role of 
judges in settling cases, the summary 
jury trial, and the role of special mas- 
ters. A series of workshops gave par- 
ticipants an opportunity to propose 
various settlement options and other 
responses toa hypothetical complaint 
filed by plaintiffs residing near a 
See CONFERENCE, page 3 

COMMITTEE, from page 1 

sideration of programs aimed at 
improving trial advocacy. The recom- 
mended programs are those that 
were originally suggested by the 
Devitt Committee and subsequently 
tested by the thirteen district courts 
that participated in the pilot program 
on attorney admissions authorized 
by the Conference in 1979. (Thejudi- 
cial Conference Committee to Con- 
sider Standards for Admission to 
Practice in the Federal Courts, 
known as the Devitt Committee, was 
appointed by Chief Justice Burger in 
1976, and reported to the Judicial 
Conference in 1979 that programs 
aimed at improving the state of advo- 
cacy in the federal courts were 

The pilot programs included fed- 
eral practice bar examinations, trial 
experience requirements, peer 
review procedures, continuing legal 
education programs, and the imple- 
mentation of student practice rules. 

although not every district court 
operating a pilot program utilized all 
of these program elements. The thir- 
teen district courts that operated 
pilot programs were CD. Cal., N.D. 
Cal., N.D. Fla., S.D. Fla., N.D. 111., 
S.D. Iowa, D. Md., D. Mass., E.D. 
Mich., W.D. Mich., D.P.R., D.R.I., 
and W.D. Tex. 

The implementation committee's 
second major recommendation was 
that the Judicial Conference assign to 
a committee responsibilities for 
receiving information from all dis- 
trict courts on programs aimed at 
improving federal trial advocacy, 
helping the courts share such infor- 
mation, and making any appropriate 
further proposals to the Conference. 

Upon acceptance of the implemen- 
tation committee's report by the Judi- 
cial Conference, the committee was 

Judge A. Leon Higginbotham, Jr. 
(3rd Cir.), dissented from the com- 
mittee's report, in response to which 
the committee filed an addendum. ■ 


Holiday Message from Chief Justice Warren E. Burger 

As the close of this year approaches 
t is appropriate that we pause a while 

reflect on the history made by the 
ederal judiciary during 1985, and I 
vant to personally thank all of you in 
he Judicial Branch who havecontrib- 
ited so much to our accomplish- 

This past year has brought us sig- 
iificant and important changes. It is 
ood to be able to report that the 
ederal judiciary adjusted to these 
hanges and met its obligations. 

One of the biggest changes came 
/hen the Administrative Office real- 
:ed a change in leadership with the 
ppointment of L. Ralph Mecham as 
le new Director and James E. Mack- 
n, Jr., as the new Deputy Director, 
hey replace dedicated public 
mployees whose combined service 
) the federal judiciary totals over 
alf a century. The transition, thanks 
) everyone involved, was smooth 
nd efficiently executed. 

When the Omnibus Crime Control 
ct was passed into law in 1984, the 
idicial Branch immediately took 
eps to assure compliance. This 
ork continued in 1985. I am proud 

■ the voluntary, dedicated action of 

1 those involved in the process — 
dividuals who madecertain thatthe 
diciary met its responsibilities. The 
dministrative Office, the Federal 
idicial Center, and the judges and 
leir supporting personnel continue 
> devote many hours of effort to 
sure that their tasks are carried out 

■ mandated by the Congress. An 
:ample of this effort is the four- 
)ur, live satellite broadcast to 30cit- 

3NFERENCE, from page 2 

zardous-waste disposal site. 
More than 50 federal judges were 
attendance. The conference noted 
Jt 1985 marks the 50th anniver- 
■y of the Federal Rules of Civil 

-ive scholarly papers were pro- 
ced for the conference. They 
:lude Seventh Circuit Judge 
:hard Posner's paper "The Sum- 

ies in January 1985, which reached 
more than 2,200 personnel in 68 dis- 
tricts. This panel discussion was also 
videotaped and has since reached 
more than three times as many 

The Chief Justice 

Our cooperation with the newly 
established Sentencing Commission 
is another example of how the federal 
judiciary has met its obligations. It 
was my privilege to issue the oath of 
office to the seven who serve on this 
commission, including three federal 
judges, on October 29, and the Chair- 
man of the commission. Judge Wil- 
liam W. Wilkins, Jr., early on held 
meetings of the commission and set 
about the task he and the other com- 
missioners face. 

Our accomplishments have been 
supported by the effective use of 
modern technology. It is a splendid 
example of how the Administrative 

Office and the Federal Judicial Cen- 
ter, in close cooperation with the 
Judicial Conference of the United 
States, have been able to move for- 
ward efficiently and to reap the 
benefits of the computer age. 

During the past year many judge- 
ship vacancies have been filled and we 
have the assurance of the Attorney 
General that nominations to fill 
remaining vacancies will be made as 
expeditiously as possible. More than 
60 new judges were afforded the 
opportunity to gather in Washington 
in January and October to attend 
seminars for newly appointed trial 
judges, and it was personally gratify- 
ing to learn of their keen interest and 
enthusiasm for their work. As for the 
appellate judges, last spring 17 new 
judges from the circuits gathered at 
the Center for an orientation 
seminar. In addition, I have appointed 
Judge Arlin Adams of the Third Cir- 
cuit to be chairman of a committee to 
evaluate and assist in designing spe- 
cial programs that will be helpful to 
circuit judges. All of this bodes well 
for the future. 

I would like to take this opportun- 
ity to thank each of you for your 
many contributions during the year. 
Mrs. Burger and I extend to all of you 
our sincere wishes for a happy holi- 
day season and a productive and 
healthy 1986. 



mary Jury Trial: Some Cautionary 
Observations"; Professor Elliott's 
paper "Managerial Judging and the 
Evolution of Procedure"; U.S. Magis- 
trate Wayne D. Brazil's analysis "Spe- 
cial Masters in Complex Cases: 
Expanding the Judiciary or Reshaping 
Adjudication?"; Yale Law Professor 
Peter H. Schuck's "The Role of Judges 
in Settling Cases: The Agent Orange 
Example"; and "Lessons from ADR," 

by Jethro K. Lieberman and James F. 
Henry, Vice President and President, 
respectively, of the Center for Public 

Copies of the above-mentioned 
papers may be obtained by writing to 
Information Services, 1520 H St., 
N.W., Washington, DC 20005. 
Enclose a self-addressed, gummed 
label, preferably franked (but do not 
send an envelope). ■ 



MOTLEY, from page 1 

strengths is that we have developed 
in this court a management system 
whereby all the judges participate in 
managing the court along with the 
Chief Judge. We meet regularly as a 
board of judges and vote on all policy 
matters. We have twenty-three com- 
mittees (membership of which is 
selected by the Chief Judge), each 
headed by a judge (selected by the 
Chief Judge), which oversee one par- 
ticular area of the court's business. 
For example, we have a committee on 
the probation department, the bank- 
ruptcy court, the clerk's office, the 
pro se litigation activity— so that the 
administrative work of this court, 
which is the largest federal trial court 
in the country, is shared by all the 
judges. The committee system has 
been in effect for many years and has 
served to give each judge a sense of 
community and collegiality. 

I hate to confess to any weak- 
nesses, but I do think that perhaps in 
the area of supporting personnel 
there is a great deal to be desired. I 
think that as the caseload for each 
judge has increased over the last 
twenty years, the manpower neces- 
sary to help us deal with that tre- 
mendous increase has not kept pace. 
So that would be a weakness, I would 
think, in our operation. 

Where do you need more help? 
In the clerk's office the position 
called courtroom deputy should be 
substantially upgraded, and a 
requirement for the position should 
be that that person be a law school 
graduate. That person would have 
the responsibility of taking full 
charge of the judge's calendar in the 
sense of not only calling up the law- 
yers on the telephone and saying 
"come in, the judge wants to see you" 
but telling the judge what the status 
of the case is and what the lawyers 
have failed to do since the last confer- 
ence, for example. Now somebody 
trained as a lawyer would be able to 
do that with very littleguidance from 
the judge, whereas if you have a high 
school graduate— and we have some 

excellent people who have gained a 
lot of experience— I think that they 
are not really able to grapple with 
some of these cases and tell the judge 
what the status is, what ought to be 
done next to get the lawyers moving. 
You always find an exception here 
and there, but I do think that court- 
room position should be upgraded 
and that salary increased to what's 
necessary to get competent people. 

Now the clerk's office is being 
automated, which would seem to 
suggest to me we need people who 
have training in automation and use 
of computers and more modern tech- 
niques. I don't know that we really 
have that. I think we have a terrible 
problem with our files. We don't 

"We have developed in 
this court a management 
system whereby all the 
judges participate in 
managing the court." 

seem to have enough people whose 
job it is to file things and to be able to 
retrieve those things from the file. 
That's a real weakness in our clerk's 
office. Judges complain every day to 
me how they send something to the 
clerk's office and then it can't be 
found— a recent order usually, a 
recent opinion — because it's away 
somewhere being photostated or it's 
mislaid in the clerk's office. And that 
just suggests a lack of manpower. 
Now when you speak to the clerk 
about it he will tell you that we can't 
hire people in the clerk's office with 
sufficient competence to keep up 
with the files because the salary does 
not look inviting to anybody with any 
competence. So it seems to me that 
we have to look at these jobclassifica- 
tions more realistically and bring 
them up to scale— particularly to 
match the scale of the New York 
labor market. In other parts of the 
country you may be able to get skilled 
people for much less money because 
the cost of living is much lower. We 
have, apparently, one standard that 

applies throughout the country, 
which renders us weak in that 
respect. We can't hire people with the 
skills that are now needed in the 
clerk's office to take charge of masses 
of documents and cases. It's a contin- 
uing problem that I say has never 
really been dealt with. 

We know there are judges who are 
here late at night trying to keep cur- 
rent. You recently wrote to New 
York's two senators urging they help 
break the logjam that has delayed 
judicial appointments. What kind of 
results did that produce? 

Well, it produced the results that 
the two judges suggested by Senator 
D'Amato— Mr. Stanton and Mr. 
Walker — have now been nominated 
by the President. Their names were 
submitted by Senator D'Amato sev- 
eral months ago and it's taken 
all this time to get them nominated. 
Now, at the moment, we are down 
five judges, including the two vacan- 
cies which Mr. Stanton and Mr. 
Walker will fill. We have a vacancy 
created by the death of Judge Werker 
last year. Here it is more than a year 
later and it's still unfilled. We have a 
new vacancy created by the recent 
appointment of Judge Sofaer to be 
Legal Adviser to the State Depart- 
ment, and Judge Gagliardi stepped 
down in July as an active judge and 
became a senior judge and that 
created our fifth vacancy. But as I've 
indicated. Judge Werker died more 
than a year ago and nobody has even 
been named for that. One of the 
vacancies to be filled by Mr. Stanton 
and Mr. Walker goes back to when 
Judge Lasker or Judge Pollack took 
senior status in September of 1983. 
So you see it's more than a year and a 
half or so that that position has been 
vacant. Now that means that the 
work of five judges is then redistrib- 
uted among the remaining 22 judges. 

If the court were at its full author- 
ized strength, could it cope with the 
current caseload? 

Well, certainly, I think much better 
than we are now. Yes, I do think so, 
although we have been authorized to 
have another position— that is, we've 

een authorized to have 28 judges 
ecause of our caseload. We have, I 
Kink it is, 400 weighted cases per 
idge, which entitles us to another 
jdge. But here again. Congress has 
et to authorize the position and that 
'ould probably be another couple of 
ears. They just authorized posi- 
ons, as you know, last October. We 
■ere not included in that judgeship 
ill. So even if we had allof our vacan- 
es filled, we would still have the 
:-oblem to deal with that we all just 
ive too many cases to really cut 
)wn on our long working hours. 
What's the consequence of those 
iseloads? Does the quality of the 
dges' work suffer? 
Well, I think so. It would be bound 
suffer. That is, you can't devote as 
uch time and thought and reflec- 
)n as many of these matters 
quire. We have to rely more heavily 
1 our law clerks to do the research. 
e have to rely on them to draft 
linions. We have to help out in the 
urtroom with respect to the status 
cases, that is, getting cases moving 
)ng where lawyers aren't doing 
ything. And that goes back to what 
;aid about the courtroom deputy 
ing upgraded. So that seems to be 
e situation there. 

Your court has recently formed a 
mmittee on discovery sanctions. Is 
at working, and if it works, does it 
!e some judge time? 
Yes, that committee has finally 
sorted. We really haven't taken any 
3stic action with respect to that. I 
nk the existence of the new rule 
elf permitting such sanctions has 
d its effect. And, of course, you're 
^ays going to have problems with 
^yers in that direction. But I think 
? most helpful thing has been the 
t that the rule does exist which 
rmits the judge to impose 

'd like to talk a minute not just 
)ut the number of cases coming 
o your court— the federal system's 
gest trial court— but about the 
•es of cases you see. New York, of 
irse, is the nation's capital of com- 
rce, and I assume your caseload 
lects that. 

Yes. I think that we have probably a 
disproportionate number of commer- 
cial cases in this court because of our 
location here in the financial center of 
the country. It makes this court uni- 
que, perhaps, in that respect, 
although Washington probably has a 
similar load— although probably 
involving more governmental 
agencies— whereas we have the 
major American corporations that 
are all represented by Wall Street 
lawyers, so that we do have the heavy 


cases in the sense that they involve 
numerous defendants. Twenty or 
thirty defendants and a hundred 
counts. We have a case now, for 
example, that Judge Sofaer had been 
working on— a case with something 
like 24 defendants in which the 
government plans to prove 24 
murders. There are similar cases that 
have recently been filed which are 
unprecedented in the number of 
defendants and the number of 
charges involved and the time it will 

"As I travel about the country now even I am amazed at 
the progress which has been made." 

traffic in that kind of litigation. Major 

And don't you also get some 
agency cases— from the Federal 
Trade Commission and Securities 
and Exchange Commission, for 

Oh, yes, we do. I was simply saying 
that Washington would be another 
busy court in terms of probably 
commercial-type cases arising out of 
agency activity. But we certainly get 
our share right here because there's a 
regional SEC office. The agency is 
going after many major corporations 
located here. 

When you get one of those cases— 
an agency case or a commercial case 
with a phalanx of lawyers on either 
side, that's equal to what— maybe 
half a dozen drug cases— in terms of 
judge effort? 

Oh no, those can be far beyond 
that. Usually those cases take several 
years before they are finally resolved, 
and a judge could try a dozen drug 
cases in a year. 

Do you think that there's going to 
be more work for the court as a result 
of last year's Comprehensive Crime 
Control Act? 

Oh yes, many, many problems are 
cropping up. I know that in this dis- 
trict our caseload on the criminal side 
has been increased something like 24 
percent in the last year alone, and 
that is presenting us with serious 
problems because they are unusual 

take for us to actually try and dispose 
of those cases. So we do have on the 
criminal side really serious problems 
in the sense that each of us also 
already has what we call two Wheel C 
cases. Those are two cases each of 
which will take at least three weeks to 
try, and as I've said we've got some 
now that are in the category of four 
or five months to try. 

Does the clerk make the determi- 
nation when those cases come in 
as to which ones go in Wheel C? 

The U.S. Attorney, by telling us 
how long it would take to try a case, 
makes the initial designation. He will 
say, "Well, this case will take four 
months to try" (or four weeks to try) 
and this is a Wheel C case. 

Going back to civil cases— many 
judges have urged abolishing diver- 
sity jurisdiction to cut back the fed- 
eral courts' caseload. How do you feel 
about that? 

Yes, I favor that. I do think that 
that would make a dent in our case- 
load. I think thestatisticsshowthatis 
about 20 percent of our caseload. 
That would be a substantial reduc- 
tion right there and I certainly think 
that that should be done. Of course, 
the state courts are probably in worse 
condition and that's probably the 
drawback. The country as a whole 
probably would not be better off, but 
the federal judicial system would 
experience an easing in its caseload, I 
See MOTLEY, page 6 



MOTLEY, from page 5 

believe, if we were to lose our diver- 
sity jurisdiction. 

Many New York litigators look for 
any possible way to get into federal 
court, to get a much faster trial and 
one judge all the way through. 

Yes. Well, I think the single-judge 
calendar system is the greatest inven- 
tion since the wheel. Without that 
this place wouldn't move at all. And 
each judge, of course, guards his rep- 
utation jealously and would like to 
see himself referred to as a compe- 
tent judge, and having an individual 
calendar system is the incentive for 
everybody to keep working so that he 
is not the last man on the totem pole. 
You talk about keeping the court 
moving. Let's talk about your role as 
the court's administrator. What do 
you do to help your colleagues cope 
with their workload? What can you 

Well, basically our problems result 
from the fact that a judge is tied up in 
a long trial and he has to meet speedy 
trial requirements with respect to 
these other criminal cases. He would 
be tied up in a long civil trial, as Judge 
Sofaer was with the Ariel Sharon 
libel suit and as Judge Leval was with 
the Westmoreland case. Both of 
those judges were in court for weeks 
and weeks and that meant they 
couldn't try criminal cases. And so we 
had to call on senior judges whenever 
they found that the Speedy Trial Act 
was about to run and ask a senior 
judge if he wouldn't like to try the 
case. Fortunately, so far we've usu- 
ally been able to get a senior judge, 
because we have about 12 senior 
judges, about eight of whom are 
active. So 1 can always in an emer- 
gency like that call on a senior judge, 
and thank goodness they are around 
because they do save the day, so to 
speak, in that respect. But in addition 
we have the problem of reassigning a 
major case if a judge already has two 
about to be tried. The assignment 
committee, of which I am chairman, 
then has toeither decide to put it back 
in the wheel if a senior judge can't be 

found, or just ask some other judge if 
he could take that case at that partic- 
ular time. Since everybody is busy 
that's next to impossible, so we usu- 
ally just put it back in the wheel and 
some lucky judge gets another big 


Is it easier for a senior judge to 
pick up a criminal case just before 
trial than a civil case because there's 
less judge involvement before the 
trial itself? 

Yes, I think so. But there's a pre- 
trial order limiting the issues and 
indicating the witnesses and exhibits 
in a civil case, so it's not that hard to 
pick up on a ready civil trial. 

You do all your administrative 
work while you're carrying a full 

"The only way I know 
how old I am is when I 
meet young blacks who 
never heard of Brown." 

Oh yes, and that's because I am the 
first Chief Judge to have a District 
Executive, whose job it is to actually 
see to and do the administrative work 
in many areas, particularly our rela- 
tions with the Administrative Office. 
We get memos daily from the Admin- 
istrative Office requesting that this, 
that, or the other be done or request- 
ing certain information and requiring 
that certain notices be given to 
judges. Well, all that is wholly 
administrative — it has nothing to do 
with judicial function — and so it's 
very important in a court of this size 
to have an official who is competent 
to deal with these administrative 
matters. And then, of course, we 
have our relations with the public and 
that kind of thing, which the execu- 
tive also deals with. And then the 
executive in addition to helping meas 
Chief Judge acts as secretary to all 
these committees. The judge who is 
chairman of a committee can't really 
devote a lot of time to simply sending 
out committee notices and making 

sure arrangements are made for the 
meeting, getting the agenda 
together, accepting excuses from 
judges who can't attend and so forth, 
so there's a tremendous amount of 
work for the District Executive who's 
in charge. He also runs our purchas- 
ing department, our inventory, and 
we have other functions — we have 
educational programs for lawyers 
who are on the pro bono panel, we 
have educational programs for law- 
yers on our Criminal Justice Act panel 
that he supervises — he gets the pro- 
fessors in from the law schools to 
conduct those programs — and we 
also have other in-house training 
programs for employees, and so 
forth. And it's a tremendous job in 
terms of the number of duties and 
responsibilities which have attached 
to that new position. 

Can we talk about you as a judge 
rather than as an administrator? 
You've been on the bench almost two 
decades. What changes have you seen 
in the court? What trends, what 
operating shifts? 

Well, the major one is the increase 
in litigation, which everyone is aware 
of. I think that in the last 20 years 
that I've been here the caseload in the 
federal system as a whole has 
increased over 200 percent. When- 
ever I go out to speak somewhere I 
always mention that, and I think that 
a lot of our problems stem from the 
fact that we have become a society of 
litigators, with more and more people 
looking to the federal courts as a place 
to go to resolve all disputes in society. 
We're not just getting commercial lit- 
igation, which was the usual fare 
here 20 years ago, but many major 
social issues which seem to resist 
resolution by the President or the 
Congress or by the governor or some 
state agency and end up in the federal 
court, so that the federal courts have 
really moved to center stage in this 
society in a way that not many people 
contemplated, say, four decades ago, 
particularly when people hardly 
knew that we had a Supreme Court 
except they knew it was in Washing- 
ton. But now everyone is aware or 

he significant role that the Court 
)lays in our society. Either you hate 
he Court for its decisions or you love 
t, because these are very controver- 
ial issues in many respects. A couple 
if decisions came down recently in 
he area of freedom of religion — 
lighly controversial — and that kind 
•f case has, in the last two decades, 
•ccupied the time of federal judges 
onsiderably. And so the third branch 
las come into its own, so to speak. We 
lave not always been prominent in 
he history of the country but now 
k'e are, and I think that's a good thing 
ecause we profess to be a society 
overned by law and this reflects it. 
"hat is, people do still reflect the fact, 
y their activities, that the court is 
he place to go, and if you look at it, as 
inthony Lewis of the New York Times 
aid, the court is still the only place 
/here a citizen can go where the 
idge has to hear his case. No matter 
ow frivolous the case, the judge 
an't throw it in a wastebasket. He 
as to hear it and dispose of it. 
Whereas if you go to Washington you 
lay or may not get in to see your 
angressman or your senator and 
ou're certainly not going to get in to 
?e the President unless you are 
?ally special. So anybody can walk in 
le front door here and file a petition 
nd the judge will pass on it. And I 
link the citizens of this country are 
ecoming aware of that. That is, the 
ght to redress our grievances goes 
ow to the court in the main. 

Before you went on the bench you 
ere in the forefront of using the 
)urts for social ends, a relatively 
Bw trend, as you say, and a trend 
lat you were part of making. Are 
;ople who are doing the kind of 
gal work you were doing more 
ivolved in their cases and closer to 
leir clients than a commercial lit- 
ator is? Does that make it tougher 
• take the bench— is it tougher to 
;t to a state of judicial neutrality 

Well, of course, the issues that I 
as involved in 20 or 30 years ago 
ave been largely resolved. I was 
volved in the fight to level the legal 

barriers to integration and that issue, 
as far as the law is concerned, is 
resolved. What is happening now, of 
course, is more and more cases stem- 
ming from more recent legislation 
enacted by the Congress in 1964 — 
fair-employment-practices cases that 
fill the courts and controversies 
involving affirmative action and quo- 
tas, which is a more advanced stage of 
the kind of thing that I was doing. But 
I, along with Thurgood Marshall and 
Robert Carter, who is also a judge of 
this court, and others were kind of 
pioneers in this whole area of going 
to the federal court to enforce consti- 
tutional rights and when we were out 
there we were the only ones. And 
since then the whole area has grown 
tremendously, so that now public- 

"I think the greatest 
change in the legal pro- 
fession in the last 30 
years has been the influx 
of women." 

interest law is a major discipline in 
our jurisprudence. 

Some of those cases that you and 
Justice Marshall and others working 
with the NAACP Legal Defense 
Fund handled made history. What 
kind of feeling does it give you as a 
lawyer when you are on the prevail- 
ing side in a case like Brown v. Board of 

Well, naturally you would have a 
great feeling of accomplishment, not 
only personally but you know that as 
far as the country is concerned you 
have been able to contribute to the 
development of this nation. I think 
that perhaps we don't make as much 
of the fact that we have used the law 
to resolve major social problems as 
we should. I think other countries 
could learn a great deal from us, for 
example. South Africa. They have a 
similar kind of race problem. If they 
would look at the way we resolved a 
lot of it, by letting the courts handle 
many of these problems which the 


politicians find too hot to handle, well 
then they would probably be able to 
resolve some of their own problems. 
But we don't as a whole view that as a 
significant thing. In time, I think, his- 
tory will record as a great achieve- 
ment in American society that we 
were able to resolve this very difficult 
problem of race relations through 
peaceful means. But, as I say, I think 
that as a whole we as a nation are not 
now making as much of that as we 

What's happened to some of the 
people you've represented in these 
historic cases? 

I've heard from James Meredith off 
and on. He's now living in Cincinnati. 
Harvey Cant, who was another client 
of mine, is now the Mayor of Char- 
lotte, N.C. 1 got him into Clemson 
College in 1961. I was recently in 
New Orleans and 1 saw Mayor Ernest 
Morial. I worked on the Louisiana 
State University case and he was the 
first — one of the first— black gradu- 
ates of the law school there. I see a lot 
of the lawyers at the National Bar 
Association meetings. That's an 
organization of black lawyers in the 
country that I worked with around 
the South. Several of them have 
become federal judges, like Matthew 
Perry in South Carolina. And I see a 
lot of the lawyers with whom I 
worked, and as I travel around the 
country now even I am amazed at the 
progress which has been made, espe- 
cially when you talk to young blacks 
who never experienced segregation, 
and hear their expressions of amaze- 
ment that "Jim Crow" railroad cars 
existed in the past, for example. The 
only way I know how old I am is when 
I meet young blacks who never heard 
of Brown. Then I know I'm 65 or near 
it. But otherwise I have no sense, 
really, that it's been 30 years since 
Brown. You can't — time has no depth, 
so to speak. You can't feel the weight 
of it, and you feel as young as you did 
30 years ago, but you really aren't. 

If there were one change you could 
make in the federal judiciary, what 
would it be? 

See MOTLEY, page 8 




MOTLEY, from page 7 

Well, I think I would push for more 
women to be federal judges. It seems 
to me that woman judges reflect a 
major change in the federal system. 
When I came on in 1966 I think there 
were only five woman federal judges 
in the country. President Carter 
appointed about 45 woman judges 
and that has been a significant 
advance for woman lawyers. I think 
that trend should continue because 
women are the majority group in our 
society (although everybody calls 
them members of a minority group), 
and I think that I would continue, if it 
were within my power, but of course 
it is not, to appoint more women. I 
think the greatest change in the legal 
profession in the last 30 years has 
been the influx of women, which I 
think will greatly strengthen and re- 
vitalize the profession. This will be a 
different country in the 21st century. 
One of the significant changes will be 
the number of women who are lead- 
ers in this society. I think the federal 
courts should not be out of step with 
the times. ■ 

The most important .. .dissntisfncHon with nl! 
law. . . is to he found in the necessnrily mechanicnl 
operation of legnl rules. 

— Roscoe Pound (1906) 


Dec. 2-4 Juror Management 

Dec. 9-10 ludicial Conference Sub- 
committee on Judicial Statis- 

Dec. 9-10 Judicial Conference Sub- 
committee on Federal Juris- 

Dec. 9-10 Judicial Conference Sub- 
committee on Federal-State 

Dec. 11-13 Judicial Conference Sub- 
committee on ludicial Im- 

Dec. 11-13 ludicial Conference Sub- 
committee on Supporting Per- 


The imhlicnlwns lisleit below may he of inleresi to The 
Third Branch renders. Only those preceded hyn check- 
mark are nvnilahle through the Center. When ordering 
copies, please refer to the document's author and title or 
other description. Requests should he in writing, accom- 
panied hy a self-addressed, gummed mailing label, prefer- 
ably franked Ibul do not send an envelopel, and addressed 
to Federal judicial Center, Information Services, 1520 Id 
Street, N.W., Washington, DC 20005. 

\/Alclisert, Ruggero ]. "State of the Circuit 
Address 1985." Third Circuit Judicial Confer- 
ence, Oct. 7, 1985. 

American Bar Association. "Appellate Lit- 
igation Skills Training— The Role of the Law 
Schools." Report and recommendations of the 
Committee on Appellate Skills Training. 1985. 
\/6rennan, William J., Jr. "The Constitution 
of the United States: Contemporary Ratifica- 
tion." Georgetown University, Oct. 12, 1985. 
Burger, Warren E. "The Need for Change in 
Prisons and the Correctional System." 38 
Arkansas Law Review 711 (1985). 

Eble, Timothy E. "Effective Appellate Prac- 
tice in the Sixth Circuit." 16 University of Toledo 
Law Review 643 (1985). 

Engelmayer, Seldon, and Robert Wagman. 
Lord's justice. Doubleday, 1985. 

Forrester, Ray. "Truth in Judging: Supreme 
Court Opinions as Legislative Drafting." 38 
Vanderbilt Law Review 463 (1985). 

Gerhardt, Michael J., and Robert J. Marti- 
neau, Jr. "Reflections on Appellate Practice in 
the Sixth Circuit." 16 University of Toledo Law 
Review 667 (1985). 

Goldberg, Stephen, Eric Green, and Frank 

Sander. Dispute Resolution. Little, Brown, 1985. 

Haskins, George L. "Prejudice and Promise 

in the Early Years of the Federal Judiciary." 37 

Maine Law Review 301 (1985). 

Lambros, Thomas D., "The Judge's Role in 
Fostering Voluntary Settlements." 29 Villanova 
Liw Review 1363 (1984). 

\/ Levin, A. Leo, and Denise D. Colliers. 
"Containing the Cost of Litigation." 37 
Rutgers Law Review 219 (1985). 

Lyons, David. "Formal Justice and Judicial 
Precedent." 38 Vamierhilt Law Review 495 (1985). 
Martin, Boyce F., Jr. "The Flood of the Pres- 
ent: Congressional Inaction and Judicial Reac- 
tion." 16 University of Toledo Imw Review 619 

Martineau, Robert J., Jr. "Practice in the 
Sixth Circuit: Oral Argument and Decisions 
from the Bench." 16 University of Toledo Law 
Revu'w 655 (1985). 

O'Connor, Sandra D. "Introduction: 
Achievements of Women in the Legal Profes- 
sion." 57 New York State Bar journal 8 (Oct. 1985). 
Oliver, Solomon, Jr. "Appellate Fact Review 
Under Rule 52(a): An Analysis and Critique of 
Sixth Circuit Precedent." 16 University of Toledo 
biw Revu'w 667 (1985). 

Peckham, Robert F. "A Judicial Response to 
the Costs of Litigation: Case Management, 
Two-Stage Discovery Planning, and Alterna- 
tive Dispute Resolution." 37 Rutgers Law Review 
253 (1985). 

Rehnquist, William H. "Presidential 
Appointments to the Supreme Court." 2 Cons/i 
tutwnnl Commentary 319 (1985). 

VRehnquist, William H. Remarks at the 
University of Wyoming, Oct. 25, 1985. 

Render, Edwin R. "On Unpublished Opin- 
ions." 73 Kentucky Law journal 145 (1984-85). 

Shimomura, Floyd D. "The History of 
Claims Against the United States: The Evolu- 
tion From a Legislative Toward a Judicial 
Model of Payment." 45 Louisiana Imw Review 625 

Stevens, John Paul. "Legal Questions in 
Perspective." 13 Florida State University Imw Review 
1 (1985). 

V Stevens, John Paul. Address to the Federal 
Bar Association, Chicago, III., Oct. 23, 1985. 

"Symposium: Reducing the Costs of Lit- 
igation." 37 Rutgers Lnw Review No. 2 (1985). 

Tribe, Laurence H. "What Difference Can a 
Justice or Two Make?" 71 American Bar Associa- 
tion journal 60 (Sept. 1985). 

Whitebread, Charles H. "The Burger 
Court's Counter-Revolution in Criminal 
Procedures." 24 Washburn Law journal 471 

Position Available 

Circuit Librarian, U.S. Court of Appeals 
for the Fourth Circuit (Richmond, Va.). 

Salary from $26,381 to $44,430. Requires 
accredited M.L.S. and J.D.; significant 
administrative experience; and knowledge of 
WESTLAW, LEXIS, and OCLC. Responsible 
for supervision of circuit and three branch 
libraries. Position open Mar. 1, 1986. To 
apply, send resume by Dec. 31, 1985, to 
Samuel W. Phillips, Circuit Executive, U.S. 
Court of Appeals, P.O. Box 6-C, Richmond, 
VA 23214. 


MACKLIN, from page 1 

At the AO, Mr. Macklin has served 
as Chief of the Criminal Justice Act 
Division, as Assistant Director for 
Plans and Program Management, and 
then as Executive Assistant Director. 
He has been a staff member to the 
Judicial Conference of the United 
States and its Committee on Court 
Administration, and he is also Secre- 
tary to the Committee on Rules of 
Practice and Procedure. 

The new Deputy Director is agrad- 
uate of the U.S. Military Academy at 
West Point and Columbia University 
Law School. ■ 


1985 Circuit Judicial 
[lonferences Concluded 

In delivering his annual report to 
:he Second Circuit Judicial Confer- 
?nce. Chief Judge Wilfred Feinberg 
jraised the judges and their staffs for 
disposing of cases in spite of heavy 
ilings and, in some courts, judgeship 

At the outset, the Chief Judge 
eminded the audience that addi- 
ional judgeships are not the com- 
ilete answer to their heavy caseloads, 
nd he urged consideration of other 
nethods of dispute resolution. He 
specially commended for considera- 
ion expanded use of arbitration. He 
Iso reported on neu^ programs 
Iready started in the Southern and 
Eastern Districts of New York. 

In the Southern District of New 
'ork there is a pilot project that calls 
or referral of cases to arbitration. 
Jnder this program, judges order 
arties to confer with the American 
arbitration Association "about the 
ossibility of resolving a dispute 
hrough arbitration or some other 
rocess" (such as mediation). Parties 
3 the litigation are still free to call for 
rial. If they do decide to submit to 
rbitration, they must also execute a 
tipulation that advises the court that 
ley voluntarily agree to dismissal of 
leir action with prejudice. 

The Eastern District of New York 
nil also be starting a program for 
3urt-ordered arbitration. After dis- 
3very, each party to the litigation in 
civil case will go before a panel of 
iree paid arbitrators to present his 
r her version of the case. Up to 30 
jys after the decision from the arbi- 
ators, either one of the parties has 
le right to request a trial de novo, 
Jt with this right comes the require- 
ent that the party making the 
quest pay the arbitrators' fees. 
(For comments made by Chief Jus- 
:e Burger at a joint meeting of the 
merican Arbitration Association 
id the Minnesota State Bar Associa- 
)n last August, see The Third Branch, 
ct. 1985, p. 1.) 

Puerto Rico was this year's site for 
the First Circuit Judicial Conference. 
Chief Judge Levin H. Campbell pre- 
sided and on behalf of the First Cir- 
cuit accepted a warm welcome 
extended by both the Governor of 
Puerto Rico, Rafael Hernandez 
Colon, and the Mayor of San Juan, 
Baltasar Corrado del Rio. 

The program included a timely 
subject— the Omnibus Crime Con- 
trol Act— with emphasis on the work 
of the newly constituted Sentencing 
Commission. Four attorneys who 
practice in the Commonwealth of 
Puerto Rico conducted a panel discus- 
sion on the authority of the courts to 
impose sanctions. 

FBI Director William Webster gave 
an informative presentation on the 
operation of the Bureau and how it 
handles some very sensitive 
matters— including issues that the 
federal judiciary sometimes 

At the Third Circuit Judicial Con- 
ference in October, Chief Judge Rug- 
gero Aldisert's "1985 State of the 
Circuit" address was read for him, 
since Chief Judge Aldisert was unable 
to attend. Though the address deals 
with the business of the circuit, it is 
also a scholarly dissertation on such 
matters as opinion writing and a criti- 
cal look at how both lawyers and 
judges are using citations to cases to 
justify what they would have be a 
precedent. Still another criticism is 
directed to Congress, with Chief 
Judge Aldisert's conclusion that "we 
are in the midst of a congressional 
law explosion and a tournament to 
see what agency can proliferate the 
most regulations." He observed that 
"at least 100 bills to expand federal 
jurisdiction are proposed each year. 
This legislative and agency blast fat- 
tens the body of law, and adds more 
structures ... to the house of the 

Distributed at the conference was 
the "1985 Annual Report and Direc- 
tory," prepared not only as a report 
but as a pamphlet that Chief Judge 
Aldisert and Circuit Executive Wil- 


liam Slate designed for the assistance 
of the bar and public as well as the 

(For a related story on a Third Cir- 
cuit task force's report on attorneys' 
fees, see The Third Brnnch, Nov. 1985, 
p. 3.) 

* * * 

Chief Judge Donald P. Lay presided 
at the Eighth Circuit's Judicial Con- 
ference, held this year in Little Rock, 
Ark., and released a 380-page report 
on the business of the circuit. 

Judge Lay noted that the Eighth 
Circuit has kept one of the most cur- 
rent caseloads in the country, even 
though since 1979 the circuit has had 
the greatest percentage increase in 
filings in the nation. Going back to 
1977 and comparing that year's fil- 
ings with current figures shows an 
82.7 percent increase in filings. 

Judge Lay also referred to the cir- 
cuit's preargument conference pro- 
gram and said it continues to be a 
significant factor in the reduction of 
cases. Of the 284 cases in the pro- 
gram during the calendar year 1984, 
71 resulted in settlements and 42 
were dismissed. 

In the bankruptcy courts, there 
was a dramatic increase in filings of 
26 percent, while nationally there 
was an average 1 percent increase. 
The District of Minnesota recorded 
the largest number of petition fil- 
ings. ■ 

'•' <;'. ■ , 



. ■^^■; 




FJC Releases Paper on 
Videotaped Hearings 

The Center has released a staff 
paper. Assessment of Videotaped 
Bankruptcy Discharge Hearings in the 
U.S. Bankruptcy Court for the Western 
District of Pennsylvania. The paper 
discusses this court's use of 
videotape equipment in 1984. The 
videotaped presentation was used 
in place of a judge's live recitation to 
impart to debtors the standardized 
portion of the information which is 
a part of the hearing. The 6-page 
paper concludes that "the use of a 
videotape can be recommended as a 
means of both conserving judge 
time and enhancing the vaiueof the 
discharge hearing to the debtor." 

■ ■'•y.-y ■ ■■ 

-1 wVii .^ 


FJC Report on Unpublished 
Dispositions Available 

The Center has published Unpub- 
lished Dispositions: Problems of Access and 
Use m the Courts of Appeals, by Donna 
Stienstra of the Center's Research 

The paper presents a detailed 
description, in both tabular and 
narrative form, of the appellate 
courts' rules and practices with 
regard to distribution and citation 
of unpublished dispositions, includ- 
ing data on the number and types of 
unpublished dispositions in statisti- 
cal years 1981-1984. 

This paper also includes a history 
of the debate over limited publica- 
tion of appellate decisions and a 
brief analysis of the issue of equita- 
ble access to unpublished disposi- 
tions, concluding that any 
combination of restrictions or free- 
doms with regard to distribution or 
citation of such dispositions leads to 
problems for either the courts or 
the bar. 

Copies of this report can be 
obtained by writing to Information 
Services, 1520 H St., N.W., 
Washington, DC 20005. Enclose a 
self-addressed, gummed mailing 
label, preferably franked (but do 
not send an envelope). 


Dickran M. Tevrizian, jr., U.S. Dis- 
trict Judge, CD. Cal., Nov. 7 


lames H. Buckley, U.S. Circuit Judge, 
D.C. Circuit, Oct. 16 (incor- 
rectly listed as Fed. Cir. in 
November issue) 

Alan B. Johnson, U.S. District Judge, 
D. Wyo., Oct. 22 

Frank X. Altimari, U.S. Circuit Judge, 
2nd Cir., Oct. 23 

Morris S. Arnold, U.S. District Judge, 
W.D. Ark., Oct. 23 

Carrett E. Brown, Jr., U.S. District 
Judge, D.N.J., Oct. 23 

Robert L. Miller, U.S. District Judge, 
N.D. Ind., Oct. 23 

Jefferson B. Sessions 111, U.S. District 
Judge, S.D. Ala., Oct. 23 

Sidney A. Fitzwater, U.S. District 
Judge, N.D. Tex., Oct. 29 

Thomas J. McAvoy, U.S. District 
Judge, N.D.N.Y., Oct. 29 

Deanell R. Tacha, U.S. Circuit Judge, 
lOthCir., Oct. 31 

Harry D. Leinenweber, U.S. District 
Judge, N.D. 111., Nov. 7 

J. Spencer Letts, U.S. District Judge, 
CD. Cal., Nov. 7 

Ceorge H. Revercomb, U.S. District 
Judge, D.D.C, Nov. 7 


Laurence H. Silberman, U.S. Circuit 

Judge, D.C. Cir., Oct. 25 
Richard H.Battey, U.S. District Judge, 

D.S.D., Oct. 25 
Jose A. Fuste, U.S. District Judge, 

D. PR., Oct. 25 
John S. Rhoades, Sr., U.S. District 

Judge, S.D. Cal., Oct. 25 
Lyle E. Strom, U.S. District judge, D. 

Neb., Oct. 25 
Robert E. Cowen, U.S. District judge, 

D.N.j., Nov. 1 
Edward R. Korman, U.S. District 

Judge, E.D.N.Y., Nov. 1 
lane R. Roth, U.S. District Judge, D. 

Del., Nov. 1 
William J. Zloch, U.S. District Judge, 

S.D. Fla., Nov. 1 
Alex Kozinski, U.S. Circuit judge, 9th 

Cir., Nov. 7 


MilesW.Lord,U.S. District judge,D. 
Minn., Sept. 11 (incorrectly 
listed in October issue as 


Edward W. Day, U.S. District judge, 
D.R.L, Oct. 22 





Vol. 17 No. 12 December 1985 

The Federal Judicial Center 
Dolley Madison House 
1520 H Street, N.W. 
Washington, DC 20005 

Official Business 

Postage and 

fees paid 

United States 





■M- not. 



^"^ \. tK ^^"^ Index to Volume 17, January-December 1985 

Adams, Arlin M. 

Appointed Chairman of committee to assist in 

designing programs for circuit judges 
Named to FJC Board 

Administrative Agency Cases 

Discussed in interview with Chief Judge 
Constance Baker Motley 

Administrative Office of the U.S. Courts 

AO General Counsel announces availability of 
outline of cases interpreting Bail Reform Act 
of 1984 

Cosponsors conference on New Appellate Infor- 
mation Management System (New AIMS) 

Director L. Ralph Mecham reports increases in 
court filings 

Director William E. Foley announces retire- 
ment 1.1.2 

Francis F. Szczebak appointed Chief of AO Bank- 
ruptcy Division 

Increased oversight of AO by Judicial Conference 
urged by Chief Judge Walter J. Cummings 

James Macklin appointed Deputy Director 

L. Ralph Mecham appointed Director 

Opposes OPM's interpretation of life insurance 
coverage for judges who resign or retire 

Referred to in Chief Justice's holiday message 

Reports judicial workload increases 4: 

Reports more efficient use of jurors 

Statistical Analysis and Reports Division discussed 
by Chief Judge Charles A. Moye, Jr. 

William M. Nichols retires as AO General Counsel 

William R. Burchill appointed AO General Coun- 

Advisory Committee on Experimentation in the 

Chief Judge Edward Re discusses chairmanship of 
committee in interview 

Aldisert, Ruggero 

Chief Judge's "State of the Circuif'address read at 
3rd Cir. judicial conference 

Alternative Dispute Resolution 

Chief Judge James Browning cites 9th Cir.'s efforts 

to promote ADR programs 
Chief Justice suggests greater use of arbitration 
Judge Richard A. Enslen narrates tape on pretrial 

and settlement conferences 
Judges urged to suggest use by parties 
Mediation procedure in W.D. Wash, described in 

FJC report 













9; 9:3 











Mediation program in E.D. Mich, described in FJC 

National Institute for Dispute Resolution awards 

Referred to by Chief Judge Wilfred Feinberg in 

report at 2nd Cir. judicial conference 

American Arbitration Association 

Holds joint meeting with Minnesota Bar Associa- 

•^'O" 10:1; 12:9 

American Bar Association 

Annual meeting held in Washington, D.C., and 

Cosponsors study of settlement efforts in four 
U.S. district courts 

Federal Judicial Compensation Commission rec- 
ommends increases in judicial salaries 

Forms commission to study lawyers' performance 

Law Day— U.S.A. 1985 theme announced 

Litigation Section cosponsors conference on civil 
litigation management 

Midyear meeting addressed by Chief Justice 

American Civil Liberties Union 

ACLU publishes The Rights of Crime Victims 

American Inns of Court 

Ad hoc Judicial Conference committee on Inns 
authorized to create nonprofit foundation 

American Newspaper Publishers Association 

Hears Chief Justice urge creation of intercircuit 


Chief Justice urges use in speech to American 

Arbitration Association meeting 
Discussed by Chief Judge Wilfred Feinberg in 

annual report to 2nd Cir. judicial conference 

Armen, Eric V. 

Coauthor of The Caseload Experiences of the District 
Courts from 197 Z to 1983 (FJC) 

Aronovitz, Sidney M. 

Participant in S.D. Fla. program using visiting 
judges to assist in criminal cases 

Asbestos Litigation 

Asbestos Case Management: Pretrial and Trial Procedures 

published by FJC 3.2 

FJC plans to conduct new research li:2 

Attorney General of the United States— Sff 
Meese, Edwin, III 











Note: The numbers at the right of each column refer to the issue number and 


page number. 

Attorneys' Fees 

FJC publication discussed in report 9:7 

F]C publication examines efforts to set pretrial 

guidelines on court-awarded fees 2:8 

Judicial immunity from liability supported by Judi- 
cial Conference 4:3 
Seizure of legal fees ruled on in two cases 4:2 
Third Cir. issues report on court-awarded fees 11:3 



Eight Austrian judges visit Supreme Court 

Automation in Federal Courts 

Conference on New AIMS held 6:2 

Five-year plan of FJC and AO sent to Judicial Con- 
ference by Comm. on Court Admin. 4:3 

Bail Reform Act of 1984 

Outline of cases interpreting Bail Reform Act of 

1984 available 11:10 

Report on act issued 11:10 

Baker, Thomas E. 

Named 1985-86 Judicial Fellow 



Judicial Conference recommends 47 additional 

bankruptcy judgeships 11:1; 11:7 

Photographs at FJC seminar for newly appointed 

bankruptcy judges 11:9 

Bankruptcy Amendments and Federal Judgeship 
Act of 1984 

Constitutionality of judicial-appointment provi- 
sion upheld 2:3 
FJC tapes explain new legislation 1:2 

Bankruptcy Courts 

Constitutionality of bankruptcy act upheld 2:3 

Petitioner's statement electronically transmitted 

from 111. prison to E.D. Va. courtroom 2:9 

Bankruptcy Rules 

Changes sent to Congress 6:3 

Two rules changes approved by Judicial Confer- 
ence (5002, 5004) 4:3 

Becker, Edward 

Appointed to FJC committee to consider educa- 
tional programs on Crime Control Act of 1984 10:1 

Bench Book for United States District Court 

Third edition of Bench Book started 10:9 

Bermant, Gordon 

Author of Prepnririj^n United Stales Court for Automation 

(FJC) 10:7 

Blackmun, Harry A. 

interviewed about work of Supreme Court on 

ABC-TV program 2:7 

Block, Michael K. 

Nominated to Sentencing Commission by Presi- 
dent Reagan 10:1 

Brazil, Wayne D. 

Delivers paper at National Conference on Civil 

Litigation Management 12:3 

Supervised ABA survey of settlements in four U.S. 

district courts 1:3 

Breyer, Stephen G. 

Judge nominated to Sentencing Commission by 

President Reagan 10:1 

Broome, William 

Pictured in photograph of FJC program for proba- 
tion officers 10:2 

Browning, James R. 

Member of committee to select federal judge to 

receive annual Devitt Award 10:9 

Speech at 1985 9th Cir. judicial conference 9:2 

Budget, Judicial 

Discussed in interview with Cong. Robert Young 9:4 
Reconsideration of budget cut urged by Chief 

Judge Charles Clark 6:3 

Burchill, William R. 

Named AO General Counsel 


Burger, Warren E. 

Announces 1986-87 Judicial Fellows program 11:2 

Appoints committee to consider FJC's educational 
responsibilities with regard to Crime Control 
Act of 1984 10:1 

Endorses jury pools in multijudge courts 1:2 

Holiday message 12:3 

Lauds improvements in juror utilization 2:8 

Meets with Austrian judges 6:7 

Named Chairman of Commission on Bicentennial 

of the U.S. Constitution 8:2; 10:2 

Names Judge A. David Mazzone to chair FJC 
committee to consider educational programs on 
Crime Control Act of 1984 10:1 

Notifies judiciary of President's approval of legisla- 
tion raising pay of Article III judges 10:2 
Pictured at Institute for Court Management grad- 
uation ceremonies 9:8 
Refers to appointment of Mark W. Cannon as 
Staff Director of Bicentennial of Constitution 
Commission 10:2 
Urges creation of panel to resolve intercircuit con- 
flicts 3:1; 6:3 
Urges renewed efforts to reduce Court's caseload 2:3 
Year-end report on judiciary for 1984 released 2:3 

Butzner, John 

Appointed to FJC committee to consider educa- 
tional programs on Crime Control Act of 1984 10:1 

Campbell, Levin H. 

Presides at 1st Cir. judicial conference 


Cannon, Mark W. 

NamedStaff Director of Bicentennial of Constitu- 
tion Commission 10:1; 10:2 

Canons of Judicial Ethics 

Bankruptcy rules 5002 and 5004 amended, con- 
sistent with canons 

Carlson, Norman 

Bureau of Prisons Director interviewed in The 
Third Branch 

Case Management 

Asbestos cases discussed in FJC report 
Discussed in interview with Chief Judge Con- 
stance Baker Motley 
Eighth Cir. judicial management plan explained 

by Chief Judge Donald P. Lay 
FJC report discusses case-management approach 

to attorneys' fees 
Joint trial calendar system in W.D. Mo. explained 

in FJC report 
New AIMS system demonstrated at conference on 

court automation 
Ninth Cir. procedures described in FJC report 
Role of magistrates in pretrial case management 

disclosed in FJC report 
Video program on discovery problems and case 

management available from FJC 


Brown v. Bonrd of Education 

Continental Illinois Securities Litigation 

Hastings v. Judicial Conference 1:10, 

In re Benny 

In re Tom Carter Enterprises, Inc. (bankruptcy act) 

In re Wasatch Factoring, Inc. (bankruptcy act) 

Knoxville City School case 

Pulliam V. Allen 

Union Carbide cases (Bhopal, India) 

United States v. Allocco 

United States v. Payden 

United States v. Rogers 

United States v. Woodley 

Cecil, Joe S. 

Author of Administration of Justice in a Large Appellate 
Court: The Ninth Circuit Innovations Project (FJC) 

Center for Public Resources 

Cosponsors National Conference on Litigation 

Encourages alternative dispute resolution 

Chief Judges 

Desk Book for Chief Judges of United States District Courts 
published by FJC 

Chief Justice of the United States— See Burger, 
Warren E. 

China, People's Republic of 

Top-ranking Chinese jurists visit FJC during U.S. 

Circuit Executives 

Eighth Cir. executive's office moved 


















Executives to receive reports on cases under 
advisement or submission 

John W. Macy, Jr., is author of The First Decade of the 
Circuit Court Executive (FJC) 

Judge Jack R. Miller appointed to Board of Certifi- 

Commission on Executive, Legislative, and Judi- 
cial Salaries 

Receives ABA report recommending increase in 
judges' pay 





Circuit Judicial Conferences 

Circuit judges and practitioners exchange views 

Schedule of 1985 judicial conferences 

Summary of conferences in 1st, 2nd, 3rd, and 8th 

Circuits 229 

Clark, Charles 

Chairman of Judicial Conference Committee on 
the Budget urges reconsideration of proposed 
budget cuts ^.3 

Clerks of Court 

Discussed in interview with Chief Judge Con- 
stance Baker Motley 121 

Judicial Conference disapproves legislation requir- 
ing clerks to collect criminal fines ii:i 

Coffin, Frank 

Chairman of Judicial Conference Committee on 
the Judicial Branch asks Comptroller General to 
reconsider opinion on cost-of-living increases 
for the judiciary 



Commission on the Bicentennial of the U.S. 

Chief Justice named chairman 8:2 

Releases first report ni 

Committee on Admission of Attorneys to Federal 

Final report of implementation committee released 12:1 

Comprehensive Crime Control Act of 1984 

Conference on provisions held in S.D.N.Y. 
Discussed in interview with Judge A. David Maz- 

Discussed in interview with Chief Judge 

Constance Baker Motley 
FJC publishes synopsis of legislation 
Judicial Conference disapproves proposed legisla- 
tion to require court clerks to collect fines levied 
under act 
Legislation approving appointment of senior 

judges to Sentencing Commission signed 6:1 

Mentioned in Chief Justice's holiday message 12:3 

Satellite seminar explains provisions 1:1; 3:5 

Sentencing Commission nominees named by Pres- 
ident Reagan jg.j 





Comprehensive Forfeiture Act of 1984 

Two courts differ on seizure of legal fees as defend- 
ant's assets 

Comptroller General 

Opinion regarding legislation giving pay raise to 
Article III judges 

Conference of Chief Justices 

Urges Judicial Conference resolution on state 
judges' immunity 

Conference on Court Delay Reduction— Sc? 
National Conference on Court Delay Reduction 

Conferences— Sff Seminars and Conferences 

Conrad, Francis 

Pictured at FJC seminar for new bankruptcy 

Corrado del Rio, Baltasar 

Mayor of San Juan, P.R., welcomes attendees at 1st 
Cir. judicial conference 


Bureau of Prisons Director Norman A. Carlson 

interviewed in The Third Branch 
National Center for Innovation in Corrections 


Corrothers, Helen G. 

Nominated to Sentencing Commission by Presi- 
dent Reagan 

Cotton, Stacey W. 

Pictured at FJC seminar for new bankruptcy 

Council for Court Excellence 

Plans program with D.C. court representatives 
and industry executives on court management 

Court Automation 

Report on five-year plan for automation received 
by Judicial Conference 

Court of International Trade (U.S.) 

Chief Judge Edward Re interviewed 

Judicial Conference approves legislation authoriz- 
ing membership on the Conference for Court of 
International Trade 

Crime Control Act of 1984— See Comprehensive 
Crime Control Act of 1984 

Criminal Fine Enforcement Act of 1984— See Com- 
prehensive Crime Control Act of 1984 

Cristol, A. Jay 

Pictured at FJC seminar for new bankruptcy 

Cummings, Walter J. 

Seventh Cir. Chief Judge interviewed in The Third 














Davey, James F. 

Clerk of U.S. District Court for D.C. holds meet- 
ing on court management 

Desk Book for Chief Judges of United States 
District Courts 

Published by FJC 

Devitt Committee— See Committee on Admission 
of Attorneys to Federal Practice 

Devitt Distinguished Service to Justice Award 

Announcement on nominations for annual award 

to federal judges 
Senior Judge Edward J. Devitt is member of award 

selection committee 


Abuse of discovery process discussed in FJC 

video program 
Discussed by Chief Judge Aubrey Robinson 
Local rules in discovery process discussed 

District Court for the District of Columbia 

Holds meeting on court management 

District Executives 

Judicial Conference recommends that executives 
be authorized for districts of 8 or more judges 

Value of executives mentioned by Chief Judge 
Constance Baker Motley in interview 

Diversity Jurisdiction Cases 

Discussed in interview with Chief Judge Con- 
stance Baker Motley 

Edwards, Harry T. 

D.C. Circuit Judge's concurring opinion in Hast- 
ings V. judicial Conference 

Eighth Circuit Court of Appeals 

Office of Circuit Executive moved 










Elliott, E. Donald 

Organizes Conference on Litigation Management 

at Yale and delivers paper 12:2 

Enslen, Richard A. 

Judge explains procedures followed in W.D. Mich. 

for summary jury trials 8:3 

Speaker at Conference on Court Delay Reduction 10:3 

Fay, Peter 

Judge assists with design of S.D. Fla. program 

using visiting judges to assist in criminal cases 10:3 

Federal Judicial Center 

Judge Arlin Adams appointed to FJC Board 
Judges and court administrators from China visit 

Referred to in Chief Justice's holiday message 
Seminar on Crime Control Act of 1984 announced 





See niso Publications and Cassettes; Seminars and 

Federal Prison Industries 

Seeks high-tech manufacturing jobs for prisoners 3:1 

Federal Rules— Sec Rules 

Federal Trial Advocacy 

Referred to in King Committee report on attorney 

admissions 12:2 


Life insurance for resigned or retired judges 

explained 7:3 

Open season on insurance changes from June 1 to 
July 1 6:2 

Feinberg, Wilfred 

Presents annual report to 2nd Cir. judicial con- 
ference 12:9 

Five-Year Plan for Automation in the United 

Judicial Conference receives report of Court 
Administration Committee approving five-year 
plan 4:3 

Foley, William E. 

Announces retirement as AO Director 1:1; 2:1 

Interviewed in The Third Brnnch 5:1 

Fulford, R. Clifford 

Pictured at FJC seminar for new bankruptcy 

judges 11:9 

Gambardella, Rosemary 

Pictured at FJC seminar for new bankruptcy 

judges 11:9 

Gant, Harvey 

Mayor of Charlotte, N.C., referred to in interview 

with Chief Judge Constance Baker Motley 12:7 

General Services Administration 

GSA's role in space acquisition and maintenance 
discussed in interview with Cong. Robert Young 9:1 

Gesell, Gerhard A. 

Judge's opinion in Hastings v. judicial Conference 1:10 

Godbold, John C. 

Chief Judge assigns federal judges to assist with 

criminal cases in S.D. Fla. 10:3 

Reports on court's caseload at 11th Cir. judicial 

conference 9:1 

Grand Jurors 

Judicial Conference announces availability of 

orientation film for grand jurors 11:10 

Habeas Corpus 

Discussed at state-federal council meetings 5:1 

Referred to in interview with Chief Judge Donald 

P. Lay 4:4 

Hastings, Alcee 

D.C. Cir. Court of Appeals overrules district court 

in Hastings v. judicial Conference 
Ethics legislation of 1980 upheld in Hastings case 

Health Insurance Benefits 

Open season for benefits begins 

Hehman, John 

Sixth Cir. Clerk explains work remaining in New 

Henry, James F. 

Coauthors paper delivered at Conference on Liti- 
gation Management 

Hernandez-Colon, Rafael 

Governor of Puerto Rico welcomes attendees at 
1st Cir. judicial conference 

Higginbotham, A. Leon, Jr. 

Judge files dissent to report of Implementation 
Committee on Admission of Attorneys to 
Federal Practice 

Historical Societies 

E.D. Pa. society holds first session 
Eighth and Ninth Circuits form societies 
Groups in circuit and district courts listed 

Hodges, William Terrell 

Referred to in connection with S.D. Fla. program 
using visiting judges to assist in criminal cases 

Hoecker, Robert 

New AIMS capabilities demonstrated by 10th Cir. 
Chief Deputy Clerk 

Horney, Julie 

Author of Observation and Study in the Federal District 
Courts (FJC) 

Individual Calendars 

Referred to in interview with Chief Judge 
Constance Baker Motley 

Institute for Court Management 

Graduation ceremonies held at Supreme Court 

Insurance for Federal Judges— Sf? FEGLI 

Intercircuit Panel 

Urged by Chief Justice 2:3; 3:1; 6:3 


Examination dates set for Spanish/English inter- 
preters 4:9 

Johnson, Frank M., Jr. 

Judge receives Devitt Award 1,7 

Judges, Federal 

Judicial Conference disapproves proposed legisla- 
tion to reimburse judges for travel between 
home and official duty station ii:i 













Discussed in interview with Chief Judge Constance 

Baker Motley 
Formula for determining requirements discussed 

by Chief Judge Charles A. Moye, Jr. 

Judicial Budget— See Budget, Judicial 

Judicial Conference of the United States 

Approves amendments to bankruptcy rules 
Authorizes creation of American Inns of Court 

Budget committee head urges reconsideration of 

proposed budget cuts 
Changes procedure for reporting cases under 

advisement or submission 
Committee on Administration of the Criminal 

Law approves outline of cases interpreting Bail 

Reform Act of 1984 
Creation of additional bankruptcy judge- 
ships ^^■ 
Disapproves proposed legislation to reimburse 

judges for travel between home and official 

duty station 
Disapproves proposed legislation to require court 

clerks to collect fines levied under Crime Control 

Act of 1984 
Endorses legislation to reimburse visiting judges 

for actual expenses 
Ends time guidelines for selection of law clerks 
Oversight of AO urged by Chief Judge Walter J. 

Proceedings of Conference from Dec. 1922 

through Mar. 1984 available on-line 
Role in naming members of Sentencing Commis- 
sion outlined 
Role of Subcommittee on Judicial Statistics in 

recommending judgeships described 
Supports request of state judges for immunity 

from liability for attorneys' fees 
Work of Court Administration Committee 

See also Circuit Judicial Conferences 

Judicial Councils 

Seventh Cir.'s meeting policy explained 
State-federal councils' activities increase 

Judicial Ethics 

Constitutionality of 1980 legislation upheld 
D.C. Cir. Court of Appeals rules issues not timely 
in Hastings case 

Judicial Evaluation Guidelines 

Guidelines approved by ABA House of Delegates 

Judicial Fellows 

Douglas D. McFarland named 1985 Tom C. Clark 

1985-86 Judicial Fellows named 

Judicial Immunity 

State judges' immunity from liability for attorneys' 
fees endorsed by judicial Conference 



1; 11:7 















Judicial Panel on Multidistrict Litigation 

Refers Bhopal, India, gas leak cases to S.D.N.Y. 

Judicial Project 

Formed to promote use of alternative dispute 

Judicial Salaries 

ABA Federal Judicial Compensation Commission 
recommends salary increases for Article III 

Litigation passed to raise pay for Article III judges 

Judicial Vacancies 

Cited by Judicial Conference 

Juror Use 

AO reports more efficient use of jurors 
Chief Justice lauds improvement in juror utiliza- 

Jury Pools 

Endorsed by Chief Justice 

Keenan, John F. 

Assigned Bhopal, India, gas leak cases for pretrial 

Kendrick, Michael 

Pictured at FJC program for probation officers 

Kennedy, Cornelia G. 

Judge named to Bicentennial of Constitution 

Kerner, Otto 

Trial recalled by Judge Robert L. Taylor 

King, James L. 

Chief Judge featured in taped programs on 1984 

bankruptcy amendments 
Final report of Implementation Committee on 

Admission of Attorneys to Federal Practice 

Referred to in connection with S.D. Fla. program 

using visiting judges to assist in criminal cases 

Lambros, Thomas 

Originator of summary jury trial procedure in 
N.D. Ohio 

Law Clerks 

Time guidelines for recruitment ended 

Law Day— U.S.A. 

ABA theme for 1985 announced 


ABA forms commission to study issues affecting 
lawyers' performance 

Lay, Donald P. 

Annual report on 8th Cir. released at Judicial 

Chief Judge of 8th Cir. interviewed in The Third 















Leroy, Douglas 

Pictured at FJC program for probation officers 

Lieberman, Jethro K. 

Coauthors paper delivered at Conference on 
Litigation Management 

Life Insurance for Judges— Sir FEGLI 

Litigation Management (Civil) 

National conference held at Yale Law School 

Local Rules 

Free distribution of district courts' local rules 

N.D. Ga. issues revised local rules 

MacKinnon, George E. 

Judge nominated to Sentencing Commission by 
President Reagan 

Macklin, James E., Jr. 

Appointed Deputy Director of AO 

Referred to in Chief Justice's holiday message 

To receive suggestions for rules changes 

Macy, John W., Jr. 

Author of The First Decade of the Circuit Court Executive: 
An Evaluation (FJC) 


The Roles of Magistrates: Nine Case Studies published by 

Management, Case— 5fp Case Management 

Mandel, Marvin 

Trial recalled by Judge Robert L. Taylor 

Mansfield, Walter 

Judge named to special division of D.C. Cir. Court 
of Appeals for appointment of independent 

Margeton, Stephen G. 

Named Librarian of Supreme Court 

Marshall, Thurgood 

Recalled in interview with Chief Judge Constance 
Baker Motley 

Matthews, Burnita Shelton 

Senior D.C. District Judge interviewed in The 
Third Branch 

Mazzone, A. David 

Judge in D. Mass. interviewed in The Third Branch 

Named Chairman of FJC committee to consider 

educational programs on Crime Control Act 

McFarland, Douglas D. 

Named 1985 Tom C. Clark Judicial Fellow 

McGowan, Carl 

Judge's opinion in Hastings case 
















McHenry, James 

Pictured at FJC program for probation officers 10:2 

Meagher, Bernard 

Pictured at FJC program for probation officers 10:2 

Mecham, L. Ralph 

Named AO Director g.-i 

Referred to in Chief Justice's holiday message 12:3 

Media Library (FJC) 

New videotapes available iQ.y 


Procedures in E.D. Mich, described in FJC report 3:2 
W.D. Wash, procedure described i:9 

See also Settlement 

Meese, Edwin, III 

Addresses Judicial Conference fall meeting 11:1 

Attorney General's role in filling vacancies in 

federal judgeships 4.3 

Designated in Crime Control Act of 1984 to be 

member of Sentencing Commission 10:1 

Referred to in Chief Justice's holiday message 12:3 

Meierhoefer, Barbara S. 

Coauthor of The Caseload Experiences of the District 

Courts from 1972 to 1983 (FJC) 10:7 

Meredith, James 

Referred to in interview with Chief Judge 

Constance Baker Motley i2:7 

Miller, Arthur 

FJC report by Prof. Miller referred to in announce- 
ment of related FJC report on attorney fee 
petitions 9.7 

Miller, Jack R. 

Elected to serve on Board of Certification for 
circuit and district executives 4:3 

Minnesota State Bar Association 

Cosponsors meeting with American Arbitra- 
tion Association 10:1- 129 

Morial, Ernest 

Mayor of New Orleans referred to in interview 

with Chief Judge Constance Baker Motley 12:7 

Motley, Constance Baker 

Chief Judge in S.D.N.Y. interviewed in The Third 

Moye, Charles A. 

Chief Judge in N.D. Ga. interviewed in The Third 

Multidistrict Litigation 

Judicial panel transfers actions against Union 
Carbide to S.D.N.Y. 

Murphy, Betty Southard 

Quoted on appointment of Mark W. Cannon as 
Staff Director of Bicentennial of Constitution 





NAACP Legal Defense Fund 

Mentioned in interview with Chief Judge 
Constance Baker Motley 

Nagel, Ilene H. 

Nominated to Sentencing Commission 

National Center for Innovation in Corrections 

Formed to promote prison industries 

National Center for State Courts 

Organizes National Conference on Court Delay 

National Institute for Dispute Resolution 

Finances law school courses on alternative dispute 

Navajo Language 

English/Navajo legal glossary published 

New Appellate Information Management System 

(New AIMS) 
Session in Richmond reports on status of program 

Nichols, William M. 

Retires as AO General Counsel 

1984 Year-End Report on the Judiciary 

Released by Chief Justice 

Office of Management and Budget 

Discussed in interview with Cong. Robert Young 

Olson, Susan M. 

Named 1985-86 Judicial Fellow 

Opinion Writing 

Discussed in interview with Chief Judge Edward 

Oral Argument 

Referred to in interview with Chief Judge Edward 

Orrick, William 

Appointed to FJC committee to consider educa- 
tional programs on Crime Control Act of 1984 

Parole Commission 

Commission chairman designated in Crime 
Control Act of 1984 to be member of Sentencing 
Commission until Parole Commission is 

Issues new guidelines 

Partridge, Anthony 

Author of The Crime Control and Fine Enforcement 
Acts of 1984: A Synopsis (FJC) 


Meeting of AO Subcommittee on Supporting 
Personnel held 

Posner, Richard 

Judge delivers paper on summary jury trials at 
Conference on Litigation Management 


















Powell, Lewis P., Jr. 

Member of committee to select federal judge to 

receive annual Devitt Award 10:9 

Preargument Conferences 

Eighth Cir.'s program referred to by Chief Judge 

Donald P. Lay in report to judicial conference 12:9 

Pretrial Case Management 

Use of magistrates for pretrial management 

discussed in FJC report 9:10 


Bureau of Prisons Director Norman Carlson inter- 
viewed in The Third Branch 7:1 

Capital cases discussed at state-federal council 

meetings 5:1 

Chief Judge Donald P. Lay's views on prisoners and 
penology system presented in interview with 
The Third Branch 4:7 

High-tech jobs sought for inmates 3:1 

National Center for Innovation in Corrections 

formed 5:3 

Publications and Cassettes 

Administration of Justice in a Large Appellate Court: The 

Ninth Circuit Innovations Project (FJC) 4:2 

The American Inns of Court Program: An Introduction 

(FJC videotape) 8:3 

Asbestos Case Management: Pretrial and Trial Procedures 

(FJC) 3:2 

Assessment of Videotaped Bankruptcy Discharge Hearings in 
the U.S. Bankruptcy Court for the Western District of 
Pennsylvania (FJC) 12:9 

Attorney Fee Petitions: Suggestions for Administration 

and Management (FJC) 9:7 

The Caseload Experiences of the District Courts from 1972 to 

1983: A Preliminary Analysis (FJC) 10:7 

The Crime Control and Fine Enforcement Acts of 1984: 

A Synopsis (FJC) 2:12 

Desk Book for Chief judges of United States District Courts 

(FJC) 1:3 

The First Decade of the Circuit Court Executive: An 

Evaluation (FJC) 8:2 

The joint Trial Calendars in the Western District of 

Missouri (FJC) 5:7 

judicial Regulation of Attorneys' Fees: Beginning the 

Process at Pretrial (FJC) 2:8 

jurisdiction Under the 1984 Bankruptcy Act (FJC audio- 
tape and videotape) 1:2 

Major Issues in the Federal Law of Employment Discrimina- 
tion (FJC supplement) 4:2 

Manual for Complex Litigation (draft of 2d ed.) 5:2 

Manual on Employment Discrimination Law and Civil 

Rights Actions in the Federal Courts (FJC rev, ed.) 3:4 

The 1 984 Bankruptcy Amendments (FJC audiotape and 

videotape) 1:2 

Observation and Study in the Federal District Courts (FJC) 6:2 

Preparing a United States Court for Automation (FJC) 10:7 

Remedying Discovery Abuse in the Federal Courts: Perspec- 
tives of the Bench and Bar (FJC videotape) 6:7 

The Rights of Crime Victims (ACLU) 6:3 

The Roles of Magistrates: Nine Case Studies (FjC) 9:10 

The Sentencing Options of Federal District Judges (FJC 

rev. ed.) 9:7 

Summary Jury Trials in the Northern District of Ohio 

(FJC) 8:3 

Summary Jury Trials in the Western District of Michigan 

(FJC videotape) 8:3 

Visiting Judges in Federal District Courts (FJC) 9:7 

The Wayne County Mediation Program in the Eastern 

District of Michigan (FJC) 3:2 

Ray, George 

Chief Deputy Clerk in N.D. Cal. pictured with 

Chief Justice at ICM graduation ceremonies 9:8 

Re, Edward D. 

Chief Judge of Court of International Trade inter- 
viewed in The Third Branch 11:1 

Recess Appointments 

Validity upheld 3:5 


Report on recidivism released by Justice Depart- 
ment 5:3 

Rehnquist, William H. 

Interviewed about work of Supreme Court on 
ABC-TV program 2:7 

Richey, Charles R. 

Author of Manual on Employment Discrimination Law 
and Civil Rights Actions in the Federal Courts (FJC 
rev. ed.) 3:4 

Robbins, Ira P. 

Named 1985-86 Judicial Fellow 8:3 

Robinson, Aubrey E., Jr. 

Chief Judge in D.D.C. addresses meeting of D.C. 

business executives and court managers 11:7 

Chief Judge interviewed in The Third Branch 2:1 

Robinson, Paul H. 

Nominated to Sentencing Commission by Presi- 
dent Reagan 10:1 

Robinson, Spottswood W., Ill 

Chief Judge delivers speech at D.C. Cir. judicial 

conference 9:2 

Rules of Appellate Procedure 

Judicial Conference approves amendments 11:7 

Rules of Bankruptcy Procedure 

Amendments sent to Congress by Supreme Court 6:3 

Amendments to rules in effect Aug. 1, 1985 10:9 

Bankruptcy rules changes 4:3 

Rules of Civil Procedure 

Advisory committees on civil and criminal rules to 

monitor Rules of Evidence 12:1 

Amendments sent to Congress by Supreme Court 6:3 
Amendments to rules in effect Aug. 1, 1985 10:9 

Fiftieth anniversary noted at Conference on 

Litigation Management 12:3 

Local rules to standardize process for discovery 

and settlement discussed in FJC report 9:7 

Rules of Criminal Procedure 

Advisory committees on civil and criminal rules to 

monitor Rules of Evidence 12:1 

Amendments sent to Congress by Supreme Court 6:3 
Amendments to rules in effect Aug. 1, 1985 10:9 

Rules of Evidence 

Advisory Committee not to be reactivated 12:1 

Rush, Kenneth 

Presents Judicial Fellow award 4:3 

Rutherglen, George 

Author of supplement to Major Issues in the Federal 

Law of Employment Discrimination (FJC) 4:2 


Leave for federal judges proposed by Chief Judge 

Aubrey E. Robinson, Jr. 2:10 

Saltzburg, Stephen A. 

Appointed reporter for advisory committees on 

civil and criminal rules 12:1 


Use of sanctions referred to in interview with 

Chief Judge Constance Baker Motley 12:5 

Sarokin, H. Lee 

Judge is Chairman of 3rd Cir. task force on court- 
awarded attorneys' fees 11:3 

School Integration 

Judge Robert L. Taylor discusses cases in interview 

in The Third Branch 8:5 

Schuck, Peter H. 

Professor delivers paper at Conference on Liti- 
gation Management 12:3 

Sear, Morey L. 

Judge is Chairman of FJC seminar for new bank- 
ruptcy judges 11:9 

Seminar for Newly Appointed District Judges 

Referred to in Chief Justice's holiday message 12:3 

Seminars and Conferences 

FJC seminar for nevj district judges held 2:2; 9:1 

FJC sponsors program on statistics and expert 

testimony for judges 2:1 

Satellite seminar on Crime Control Act of 1984 

held i-i; 3.5 

Senior Judges 

Referred to in interview with Chief Judge 

Constance Baker Motley 12:6 


Discussed in interview with Judge Robert L. 

Taylor 8:5 


Observation and study of offenders discussed in 

F]C report 
Options of judges discussed in FJC report 

Sentencing Commission 

Legislation approving appointment of senior 

judges to commission signed 
Members of commission nominated by President 

Referred to in Chief Justice's holiday message 
Referred to in interview with Judge A. David 


Sentencing Guidelines 

Referred to in interview with Judge A. David 

See nho Sentencing Commission 

Sentencing Institutes 

Held in Long Beach, Cal. 
Scheduled for several federal circuits 
Value explained by Bureau of Prisons Director 
Norman Carlson 

Seron, Carroll 

Author of The Roles of Mngistrntes: Nine Cnse Studies 


ABA study released 

Discussed at Conference on Litigation Manage- 

Discussed at Fed. Cir. judicial conference 

Local rules to standardize settlement process 
discussed in FJC report 

Procedure used to induce settlements in N.D. 
Ohio described 

See also Mediation 

Seventh Circuit Court of Appeals 

Upholds district court opinion on admission of 
attorneys to federal bar 

Shuart, Kathy L. 

Author of The Wnyne County Mediation Program in the 
Eastern District of Michigan (FJC) 

Slate, William 

Coauthor of 3rd Cir. "1985 Annual Report and 

Smith, William French 

Announces new plan of cooperation between the 
United States and Italy to combat organized 

South Africa 

Race problems referred to in interview with Chief 
Judge Constance Baker Motley 

Space and Facilities for Federal Courts 

Discussed in interview with Cong. Robert A. 



















Spaniol, Joseph F., Jr. 

Named Clerk of Supreme Court 


Special Masters 

Discussed at Conference on Litigation Manage- 



Speedy Trial Act 

Impetus for program in S.D. Fla. to ensure com- 

pliance with act 


Stafford, William H., Jr. 

Referred to in connection with S.D. Fla. program 

using visiting judges to assist in criminal cases 


State-Federal Judicial Councils 

Activities surveyed 


Statistics, Judicial 

Eleventh Cir. caseload statistics discussed by Chief 

Judge John Godbold 


Federal Court Management Statistics published by AO 


FJC program on "Statistics and Expert Testimony 

in the Federal Courts" announced 


Report on recidivism released by Justice Depart- 



Role of AO Subcommittee on Judicial Statistics 



Statistics on cases under advisement or submission 

to be reported to circuit executives 


Workload of federal courts increases 


Stevas, Alexander L. 

Supreme Court Clerk retires 


Stienstra, Donna 

Author of The joint Trial Calendars in the Western 

District of Missouri (FJC) 


Author of Unpuhlished Dispositions: Problems of Access 

and Use in the Courts of Appeals (FJC) 


Author of Visiting Judges in Federal District Courts (FJC) 


Summary Jury Trials 

Judge Richard Enslen explains procedures in W.D. 



Judge Richard Posner delivers paper at Conference 

on Litigation Management 


Supreme Court of the United States 

Alexander L. Stevas to retire 2:2; 7:1 | 

Justices Blackmun and Rehnquist discuss Supreme 

Court's legal philosophy on ABC-TV program 


Names Joseph F. Spaniol, Jr., Clerk 


Names Stephen G. Margeton Librarian 


Reduction in caseload urged by Chief Justice 2:3; 3:1; 6:3 

Szczebak, Francis F. 

Appointed Chief of AO Bankruptcy Division 


Taylor, Robert L. 

Former chief judge of E.D. Tenn. interviewed in 

The Third Branch 


Third Circuit Court of Appeals 

Issues report on court-awarded attorneys' fees 



Tjoflat, Gerald 

Judge appointed to FJC committee to consider 
educational programs on Crime Control Act 
of 1984 10:4 

Torruella, Juan 

Sworn in as first Circuit Judge from Puerto Rico 1:2 

Translators— Sec Interpreters 

Travis, John 

Pictured at FJC program for probation officers 10:2 

Triester, George B. 

Featured in taped program on 1984 bankruptcy 

amendments 1:2 

Participant in FJC seminar for new bankruptcy 

judges 11:9 

Unpublished Opinions 

Discussed in FJC report 12:10 

Use explained by Chief Judge Walter J. Cummings 6:5 

Victims' Rights 

ACLU book outlines restitution available to crime 

victims 6:3 

Victim restitution discussed at sentencing insti- 
tute 3:3 


New tapes available from media library 10:7 

See also Publications and Cassettes 

Video Technology 

Used for bankruptcy hearings in E.D. Va. and 

W.D. Pa. 2:9; 12:9 

Visiting Judges 

FJC report discusses use of visiting judges 9:7 

Visiting judges assist in criminal trials in S.D. Fla. 

program 10:3 

Webster, William 

Speaker at 3rd Cir. judicial conference 12:9 

Weeks, Nancy A. 

Coauthor of Attorney Fee Petitions: Suggestions for 

Administrntion and Management (FJC) 9:7 

Weighted Caseloads 

Discussed in interview with Chief Judge Charles 
A. Moye, Jr. 1:5 

Welch, Bernard 

Bureau of Prisons Director Norman Carlson 
comments on an escape from Chicago correc- 
tional center 

West Publishing Company 

Creates, with AO, on-line data base of Judicial 
Conference proceedings 

Wiggins, Charles W. 

Judge named member of Bicentennial of Constitu- 
tion Commission 

Wilkins, William W., Jr. 

Designated Chairman of Sentencing Commission 

Willging, Thomas E. 

Author of Asbestos Case Management: Pretrial and Trial 
Procedures (FJC) 

Author of judicial Regulation of Attorneys' Fees: Begin- 
ning the Process at Pretrial (FJC) 

Coauthor of Attorney Fee Petitions: Suggestions for 
Administrntion and Management (FJC) 

Winter, Harrison L. 

Chief Judge delivers speech at 4th Cir. judicial 

Women Judges 

Referred to in interview with Chief Judge 
Constance Baker Motley 

Women's Rights 

Referred to in interview with Judge Burnita 


AO reports rise in federal courts' workload 
Federal Judicial Workload Statistics for year ending 

March 31, 1985, released by AO 
Supreme Court workload discussed 2:3; 3: 

Workload in circuit and district courts discussed at 

circuit judicial conferences 

Yale Law School 

Holds National Conference on Litigation Manage- 

Zheng Tianxiang 

President of Supreme People's Court of P.R.C. 
leads delegation of Chinese jurists on U.S. visit 

















Index to Volume 17 

The Federal Judicial Center 
Dolley Madison House 
1520 H Street, N.W. 
Washington, DC 20005 

Official Business 

Postage and 

fees paid 

United States 





mi. ih£. 



fustice Stewart Eulogized Nationally 

justice Potter Stewart 

Justice Potter Stewart, vvlio served 
n tlie Supreme Court of tJie United 
fates from 1958 until his retirement 
: tlie end of tJie term in 1981, died 
'ecember 7th at tJie age of 70. He 
ad been in ill Jiealth for the past sev- 

al years. 

Justice Stewart's home state was 
Ohio, and he had strong ties to that 
state. He replaced another justice 
from Ohio (Justice Burton), and 
when he was appointed by President 
Eisenhower he became the fifteenth 
justice to come to the Supreme Court 
from Ohio, either by birth or 

The Justice's father, James Garfield 
Stewart, was a member of the 
Supreme Court of Ohio and at one 
time was Mayor of Cincinnati. The 
Justice served as City Council- 
man in that city. His education was 
acquired in three countries- 
Switzerland, England, and the United 
States — and his law degree was 
earned at Yale Law School, where he 
graduated cum laude in 1941. 

During World War II the Justice 
served in the U.S. Navy. He practiced 
law in New York and Cincinnati until 
he was appointed to the U.S. Court of 

See STEWART, page 3 

Bicentennial Commission 
Adopts Policies 

At its meeting in late November, 
the Commission on the Bicenten- 
nial of the U.S. Constitution 
adopted policies governing its 
recognition and support of bicen- 
tennial projects and adopted other 
regulations and policies governing 
its future activities. 

On Dec, 5, Dr. Mark W. Cannon, 
the Commission's Staff Director, 
appeared before subcommittees of 
the U.S. House of Representatives 
to support amendments to the act 
that created the Commission. 
Among the amendments are provi- 
sions that would permit an increase 
in Commission personnel and raise 
the limits on private donations. 

The Commission distributed its 
first newsletter, in which it 
reported on its own activities as 
well as those of other groups 
throughout the country. 

For further information, contact 
the Commission on the Bicenten- 
nial of the U.S. Constitution at its 
new office, 734 Jackson Place, N. W., 
Washington, DC 20503, telephone 
(202) USA-1787. 

miencing Commission Chairman to Form A dvisory Committee 

udge Wilkins Sworn In as Chairman of U.S. Sentencing Commission 

On Oct. 19, 1985. judge WiUiarn W. 
ilkms, Jr. (D.S.C.I took the oath of office as 
lairman of the newly created United States 
niencing Commission. The oath was 
ministered by the Chief Justice of the Uni- 
' States in the West Conference Room of the 
preme Court with all other commissioners 
attendance. Judge Wilkins was interviewed 
The Third Branch U days later. 
Judge Wilkins was nominated to the fed- 
i/ bench in 1981 by President Reagan. 
iorlothat, he was Assistant County Solici- 
and then was Solicitor for the Thirteenth 
iicial Circuit in South Carolina (the equi- 
'ent of being slate district attorney) from 
77 to 1981. 

fudge Wilkins graduated from Davidson 
liege and from the University of South 

Judge William W. Wilkins, jr. 

Carolina School of Law, where he was editor- 
in-chief of the law review. Following law 
school, he served as a captain in the U.S. 
Army, and then clerked for Judge Clement F. 
Haynsworth, Jr. He has also been legislative 
assistant to U.S. Senator Strom Thurmond. 
For 8 years Judge Wilkins was in private 
practice in Greenville, S.C. 

The President announced his nom- 
inations for the members of the Sen- 
tencing Commission on Sept. 12, 
1985, including your designation as 
Chairman. The Senate confirmed 
these nominations on Oct. 16, and 
the commissioners took their oaths 

See WILKINS, page 4 



University of Virginia Law School Receiving 
Applications for Judges' Graduate Program 

Jan. 10-11 Judicial Conference Com- 
mittee on the Budget 
Jan. 13-14 Judicial Conference Com- 
mittee on the Operation of 
the Jury System 
Jan. 13-14 Judicial Conference Com- 
mittee on the Administration 
of the Probation System 
Jan. 13-14 Judicial Conference Advi- 
sory Committee on Codes of 
Jan. 15-17 Seminar for Bankruptcy 

Jan. 16-17 Judicial Conference Com- 
mittee on the Administration 
of the Bankruptcy System 
Jan. 20-21 Judicial Conference Com- 
mittee on the Administration 
of the Criminal Law 
Jan. 21-22 Judicial Conference Com- 
mittee on Court Administra- 
Jan. 22-24 Judicial Conference Com- 
mitteeto Implement the Crim- 
inal Justice Act 
Jan. 22-24 Seminar for Magistrates 
of the Ninth and Tenth Cir- 
Jan. 23-24 Judicial Conference 
Committee on Rules of Prac- 
tice and Procedure 
Jan. 27-28 Judicial Conference 
Committee on the Judicial 
Jan. 27-29 Judicial Conference Com- 
mittee on Judicial Ethics 
Ian. 27-29 Workshop for ludges 
of the Ninth Circuit 



Published monthly by the Administrative 
Office of the US C ourts and the F ederal judi- 
cial Center Inquiries or changes of address 
should be directed to 1520 H Street, N W , 
Washmgton, DC 20005 

Alice L O'Donnell, Director, Division of Inter- 
ludicial Affairs and Information Services, fed- 
eral ludicial C enter 

The University of Virginia Law 
School is currently receiving applica- 
tions for the next class in its graduate 
program for judges, scheduled to 
start in the summer of 1986. The pro- 
gram is designed for state and federal 
appellate judges; U.S. circuit judges 
are encouraged to apply. U.S. district 
judges are also admitted to the 

The program requires attendance 
at two resident sessions at the law 
school in Charlottesville in the 
summers of 1986 and 1987. The 1986 
session will run from |une 30 
through Aug. 8. The deadline for 
applications is |an. 31, 1986. 

The Board of the Federal judicial 
Center has again authorized funding 
to defray expenses of a limited 
number of federal judges who are 
accepted for this program. Those 
funds, together with the University 
of Virginia program funds, make it 
possible for federal judges to pursue 
the program with all necessary 
expenses covered. 

Requests for applications, forms, 
and other information should be 
directed to; 

Daniel J. Meador, Director 
Graduate Program for Judges 
University of Virginia Law School 

Video Program on Federal Habeas Corpus 
Practice Now Available Through FJC 

The Center this month announced 
the availability of a video program. 
The Theory and Practice of Federal Habeas 
Corpus for State Prisoners, with Professor 
Ira P. Robbins lecturing. 

The three-hour program, a survey 
of major habeas corpus issues, is com- 
posed of seven separate segments on 
four tapes. It covers the background 
of habeas corpus, jurisdictional 
matters, exhaustion of state judicial 
remedies, abortive state proceedings, 
appeals and successive applications, 
and, in the concluding segment, 
developments that may be 
anticipated. A handout with case cita- 
tions and relevant statutory and rule 
provisions is available. 

The program is available on audio- 
cassette as well as videotape, and 
either version may be ordered from 
the Center's media library by writing 
Information Services, 1520 H St., 
N.W., Washington, DC 20005. Please 
enclose a self-addressed, gummed 
label, preferably franked, and please 
be certain to specify either audio- 
cassette (refer to catalog number A|- 

738) (13 oz.) or videotape (catalog 
number VJ-073), and, if specifying 
videotape, whether 1/2" VHS format 
(3 lb.) or 3/4" U-Matic format (8 lb.). 
The volume of demand makes it 
impossible to process telephone 

The Center is not equipped to cir- 
culate its media holdings outside the 
federal judiciary, but chief judges of 
the circuit and district courts have 
been specially advised of the pro- 
gram's availability, in the event they 
wish to order it for use at meetings of 
state and federal judges or of court- 
sponsored programs for the bar. 

Professor Robbins is Barnard T. 
Welsh Scholar and Professor of Law 
at the American University, 
Washington College of Law, and for 
the 1P85-1986 academic year is serv- 
ing as judicial Fellow at the Center. In 
addition to his occasional lectures at 
various Center programs for judges 
and magistrates. Professor Robbins 
has spoken at symposia sponsored by 
the state-federal judicial councils in 
five states (see related story, p. 3). ■ 


State-Federal Judicial Council Meetings 
Discuss Sanctions, Calendars, Habeas Corpus 

The year 1<385 marked a resur- 
gence of interest in the state-federal 
judicial council meetings, and some 
new subjects have emerged as a 
result of technological and other 
changes in the courts. 

Montana's council, for example, 
had first on their agenda an exchange 
of information about use of video 
equipment as a training tool. As other 
councils have done, Montana's 
members discussed sanctions, espe- 
cially as they relate to abuse of the 
discovery process. The sanctions 
Chief judge James Battin imposed in 
the Honda case v^ere used as a basis for 
the discussions. {See Fjehtnd v. American 
Honda Motor Co., 762 F.2d 1334 (9th 
Cir. 1985).) 

New York's council met Dec. 2 in 



The Chief lustice 
of the United States 

ludge Daniel M. Friedman 

United States Court of Appeals 

for the Federal Circuit 

ludge Arlin M. Adams 

United States Court of Appeals 

for the Third Circuit 

Chief Judge Warren K. Urbom 

United States District Court 

District of Nebraska 

Chief ludge Howard C. Bratton 

United States District Court 

District of New Mexico 

ludge A. David Mazzone 

United States District Court 

District of Massachusetts 

ludge Martin V.B. Bostetter, |r. 

United States Bankruptcy Court 

Eastern District of Virginia 

L. Ralph Mecham, Director 

Administrative Office of the 

United States Courts 

Federal judicial Center 

A. Leo Levin, Director 

Charles W. Nihan, Deputy Director 

New York City and, among other 
matters, considered a report on 
habeas corpus cases written by 
Second Circuit Executive Steven 
Flanders and his staff. Statistics in 
this report show that of the 158 state 
habeas corpus cases reviewed by the 
Second Circuit over a two-year 
period (1983 and 1984), only three 
called for the unconditional release of 
a petitioner. 

An outgrowth of the New York 
state-federal judicial council was a 
panel discussion of the merits of the 
individual calendar system, which 
attracted an audience of around 200 
judges and lawyers. The panel was 
made up of two state and two federal 
judges, and both Chief ludge Sol 
Wachtler of New York's highest 
court and Chief Judge Wilfred Fein- 
See COUNCILS, page 7 

STEWART, from page 1 

Appeals for the Sixth Circuit at age 
39, which made him the youngest 
federal judge then in service in this 

Upon retirement, the Justice sat on 
several United States courts of 
appeals, in addition to making tape 
recordings for the blind, serving as an 
international arbitrator in an inter- 
national case, and more recently on 
the President's Commission on 
Organized Crime and the National 
Bipartisan Commission on Central 

Four years ago The Third Branch 
interviewed Justice Stewart in his 
chambers at the Court and he spoke 
candidly on several matters. Asked 
whether he had any regrets about 
anything in connection with the 
opinions of the Court, Justice Stew- 
art answered, "Yes I wish I had 

had more time to write dissenting 
opinions." (See The Third Branch, vol. 
14, no. 1, 1982.) 

lustice Lewis F. Powell, Jr., writing 

FJC Audiocassette on 

Federal Rules 
of Evidence Available 

The Center's Information Ser- 
vices Office has available for loan a 
90-minute audiocassette entitled 
The Text of the Federal Rules of Evidence. 
The audiocassette was produced by 
the Center in November 1985, and 
is current through that date. It con- 
tains only the text of the rules; it 
does not include advisory commit- 
tee notes or any other interpretive 
material. Like all Center audio- 
cassettes, it may be played on most 
home and automobile tape decks. 

Federal judicial personnel may 
request this audiocassette by writ- 
ing to Information Services, 1520 hi 
Street, N.W., Washington, DC 
20005. Please send a self-addressed, 
gummed label, preferably franked 
(but do not send an envelope), and 
refer to catalog number 1-A. The 
cassette weighs six ounces. The 
volume of requests for such mate- 
rials precludes the Center's taking 
orders by telephone. 

in the Harvard Law Review in 1981 
(95 Harvard Law Review 1 (1981) ), 
noted that "Justice Stewart used oral 
argument to add an extra dimension 
to the Court's consideration of a 
case.... He skillfully used oral 
argument as a means of ensuring the 
kind of clarity of thought that 
exemplified his own writing. 

"Justice Stewart wrote with a 
talent for phrasemaking that helped 
to convey complicated ideas in a few 
memorable words. ...Because his vote 
in cases was said to be 'unpredictable,' 
Potter Stewart was sometimes 
labeled a 'swing' vote. There is no 
doubt that. ..Justice Stewart was a 
voice of moderation. But he was 
always more than a check on judicial 

"In carrying out his responsibilities 
on the Supreme Court, Justice 
Stewart was ever conscious of the 
distinction between his personal 

See STEWART, page 10 



WILKINS, from page 1 

of office on Oct. 29. What have you 
done thus far by way of 

1 recently met with representatives 
of the Federal Judicial Center and 
requested that descriptive sentencing 
data be compiled for use by the Com- 
mission as a starting point for its 
efforts. Further, we are now involved 
in organizing individual and group 
efforts of the commissioners based 
upon our particular fields of 

What size staff will you have and 
where will your offices be located? 
We intend to appoint a staff direc- 
tor and such other staff members as 
are necessary. Obviously, we will 
need a staff with legal and research 
backgrounds. 1 envision the staff 
totaling no more than 40 people, 
including administrative and secre- 
tarial personnel. As for office space, 
we are located at National Place, 1331 
Pennsylvania Ave., N.W., Washing- 
ton, DC 20004, telephone (202) 662- 

How large a budget will you have 
to do all this? 

Well, we are unsure of the long- 
range budget over the period of years 
the Commission will be in operation. 
Congress has initially appropriated 
$2.3 million. 

That should give you ample funds? 
Well, it's more than ample to get 
started. I'm sure it will carry us for 
some time. We are in the process of 
preparing a formal budget to be sub- 
mitted to Congress. 

Did you know any of the other 
commissioners prior to their affilia- 
tion with the Commission? 

The commissioners are generally 
recognized for achievements in their 
respective fields, and I knew some by 
reputation; however, 1 did not know 
any of them personally. 

Your service as Circuit Solicitor in 
South Carolina must have prepared 
you for the work of the Sentencing 

I believe that my practical expe- 
rience in the criminal justice field has 
made me aware of the many issues in 

the administration of justice which 
this Commission will address. I 
believe that this will help the Com- 
mission in formulating practical, fair, 
and effective approaches to the very 
complex problem of sentencing crim- 
inal defendants. 

Did you find your service as law 
clerk to Judge Clement Haynsworth 
a good way to enter the legal 

I was law clerk to Judge 
Haynsworth right after I finished my 
service in the army. Noyoung lawyer 
could have asked for a better 
experience. There is no better way to 
start a legal career than having the 
opportunity to work with a man like 
Judge Haynsworth. We still share a 
very close relationship. He and 1 have 
offices in the same building so 1 have 
the privilege of seeing him 

The initial terms of the commis- 
sioners are staggered but you have a 
full term of six years. In addition, the 
act specifically states that the chair- 
man is to be full-time. What happens 
to the cases assigned to you? 

My first priority must be toward 
discharging my responsibilities as 
Chairman of the Sentencing Com- 
mission. However, I do intend tocon- 
tinue my work as a trial judge so that 
the movement of cases in South 
Carolina as far as my docket is con- 
cerned will not be delayed. Chief 
Judge Harrison Winter of the Fourth 
Circuit has coordinated with my dis- 
trict's Chief Judge, Charles Simons, 
and arrangements are being made to 
bring in senior judges to help out. In 
addition. United States District Judge 
C. Ross Anderson, Jr., with whom I 
share the workload in the Piedmont 
area of South Carolina, has agreed to 
assist me so that my docket can be 

"If any judges who . . . read this article are interested in 
serving on such a committee, I would appreciate their 
getting in touch with me." 

April 12, 1986, is the date set forth 
in the act for completion of the initial 
guidelines by the Commission. Can 
you meet this deadline and send 
them to Congress by that date? 

The law creating the Sentencing 
Commission provided a period of 18 
months in which the sentencing 
guidelines were to be drafted. This 
initial 18-month period expires in 
April of 1986. Since the commission- 
ers were only sworn in a few weeks 
ago, we now have only a few months 
to accomplish this task unless the law 
is amended. A proper job cannot be 
done in this short period of time. 
Consequently, the Commission has 
requested an extension of 12 months. 
Since this extension would be in 
keeping with Congress's original 
intent, I believe our request will be 
granted. [A bill was passed in the 
House on Dec. 16 delaying to April 
1987 the date when the guidelines 
must be submitted to Congress for 

maintained and cases disposed of in a 
timely fashion. 

It sounds like you have very good 
collegiality in your court and the 
cooperation of the judges in the 
South Carolina district. 

Fortunately, yes. 

Could you expand on the role of 
the Federal Judicial Center and what 
support you are expecting from Cen- 
ter personnel? 

Well, I've already referred to what 
the Center is doing by compiling de- 
scriptive data for the Commission. 
Director Levin has assured us of the 
full cooperation of the Center: pro- 
viding some of the data that we are 
going to need, and acting as a gather- 
ing point to collect data from the var- 
ious agencies, assimilate it, put it in 
an understandable format, and sub- 
mit it to the Commission. 

How about the circuit judges who 
could soon be reviewing appeals 
from sentences? 

Well, obviously, the guidelines are 

going to be used by all of the district 
judges, and the appellate judges will 
have their work cut out for them 
reviewing sentences. What i intend 
to do is to request representatives 
from the district courts and the 
appellate courts to serve on an advi- 
sory committee to our Commission 
so that we can have input as we go 
through this process— from those 
who will actually be using these 
guidelines. I might add, if any judges 
who happen to read this article are 
interested in serving on such a com- 
mittee, I would appreciate their get- 
ting in touch with me so that we may 
consider their interest in this work. 

As you approach the task ahead, 
what do you see as the most difficult 
part of your job? 

I believe that the most difficult 
aspect of our work will be something 
that 1 have experienced for 15 years 
as a trial attorney and as a trial 
judge— that is, accommodating and 
coordinating conflicts among and 
between people in an effort to resolve 
issues. There is a tremendous oppor- 
tunity with this Commission to do 
something about a problem which 
everybody agrees needs to be 
resolved somehow. Everyone agrees 
that we need sentencing reform. The 
disagreement is over how much is 
needed, what the problems have 
been, and whether our remedy will 
infringe on viewpoints which people 
feel very strongly are correct. The 
point is that this Commission has 
been entrusted with this task jointly 
oy the President, Congress, and the 
udicial branch, and has been given 
3oth a great deal of guidance and a 
;reat deal of leeway in how we can 
'est accomplish our goals. In order 
hat our guidelines will not only do 
ustice but will also have a wide range 
)f approval, we will involve judges, 
)rosecuting attorneys, defense at- 
orneys, victims, prison and probation 
>ersonnel, and others in the decision- 
naking process. 

The federal prisons will be 
ffected very directly by your work. 
Vill you keep this in mind as you 
pproach your tasks? 

With regard to prison capacity, the 
problem as I see it— and apparently as 
Congress sees it, too— is that a for- 
mulation of public policy, if it is 
responsible, must simultaneously 
weigh the cost of that policy, it would 
do us no good to promulgate guide- 
lines which bring about prison condi- 
tions which are unacceptable to 
everyone. However, if in establishing 
our policy and guidelines it becomes 


Are you concerned that firmly 
established guidelines will make the 
sentencing process too mechanical? 

I do not see this as a problem. It 
appears to me that Congress clearly 
intended guidelines which are meant 
to be followed. I believe that the 
provisions— for instance in 28 U.S.C. 
section 991(b)— plainly allow for 
some flexibility to permit individual- 
ized sentencing when warranted, to 

judge Wilkins with Senator Strom Thurmond, Chairman of the Senate Judiciary 
Committee, at Judge Wilkins's confirmation as Chairman of the Sentencing 



evident that removing more danger- 
ous, predatory offenders from the 
streets will in fact require more pris- 
ons, we cannot shirk the responsi- 
bility to recommend this to the 
Congress. On the other hand, we will 
be searching for meaningful alterna- 
tives to incarceration, which could 
very well reduce the number of cer- 
tain types of offenders who are pres- 
ently given sentences which require 

Do you anticipate that you might 
take the Commission with you to 
visit some of the prisons? 

Norman Carlson has already 
offered to do this. The Commission 
plans to visit various levels of prisons 
in the very near future. 

recognize mitigating or aggravated 
circumstances. Judges are human and 
are blessed with the experience and 
common sense which should always 
be a part of any decision they make. It 
is not our purpose or our intent to 
take this out of the process. I know 
from a lifetime affiliation with the 
courts— by watching my father in 
court when I was a boy, by participat- 
ing as a lawyer myself, and now as a 
judge— that judges as human beings 
show human virtues, but are also 
subject to human emotions, to incon- 
sistencies. We sometimes make deci- 
sions in sentencing which could be 
better if the exercise of sentencing 
discretion were better structured. 
See WILKINS, page 6 


WILKINS, from page 5 

The result of sentencing practices 
today evidences great disparity, a 
sense of uncertainty and sometimes 
unfairness in the criminal process. 

Do any of our states have anything 
similar to this? 

Washington, Ohio, Minnesota, 
Pennsylvania, Maryland, and Florida 
have guidelines of one form or 

"Everyone agrees that we need sentencing reform. The 
disagreement is over how much is needed." 

The end result is to some degree a 
loss of respect for our system. This is 
not good, and this Commission was 
created to correct this. 

Back to the circuit judges. They 
could vacate the sentence, they could 
remand to the district court, or a 
three-judge panel could substitute 
their own sentence? 

The legislation is presently subject 
to some debate about the authority of 
appellate judges regarding their 
review of sentences. While the stat- 
ute gives appellate judges the 
authority to "correct" a sentence, it 
would be unwise, in my judgment, 
to allow appellate judges to resen- 
tence a defendant. While technical 
corrections could be made if an appel- 
late court found that the guidelines 
were erroneously applied, the better 
course would be to remand to the 
district court with instructions. 
Remember that the guidelines will 
provide for a 25 percent variance. A 
sentence should be imposed by the 
trial judge, with the defendant and all 
whom he wishes to speak for him in 
court. This is one area where 1 am 
confident that the Commission will 
make recommendations to the Con- 
gress to better define the role of 
appellate judges in reviewing sen- 

Judge, are there areas where the 
act is not really as specific as you 
would like it to be? 

With any major act of Congress 
such as this, there are bound to be 
some areas that need some revision. 
That's one of our tasks, along with 
sentencing guidelines — to make 
recommendations to the Congress 

Does any nation presently have 
sentencing guidelines? 

My understanding is that the 
effort by the United States is the first 
effort in history by any country to 
adopt mnndntory sentencing 

Perhaps you will be setting an 

Well, 1 understand a great deal of 
interest has been generated in the 
European countries about the work 
of this Commission, and perhaps if 
we do a good job— and we all intend 
to see that that happens— we may not 
only be an example for individual 
states in this country but also an 
example for other nations. 

When you first got word of your 
nomination were you somewhat 
overwhelmed by the magnitude and 
scope of the project? 

"Overwhelmed" is certainly an 
understatement. This is a mammoth 
task that Congress has given us, but 
with that comes a great deal of 

Everyone involved shares your 

That's right. Well it's very interest- 
ing work, and everybody has a lot of 
expertise to give us, so we are going 
to draw on that as best we can. I want 
to draw upon the resources that we 
have in the government already. 
That will not only save us money—! 
think we will find that the best 
experts are there. 

There is another thing we are 
going to do that 1 think is very impor- 
tant. We need the input from a lot of 
different people and those people are 
going to be judges who actually are 
dealing with this problem. District 
attorneys will be a tremendous 
resource, and defense attorneys; I've 
had contacts already with some of 
those groups. Victims' rights groups 
are very important, and we need their 
input. We intend to hold public hear- 
ings around the nation, because our 
job is to develop guidelines that not 
only meet the mandate of Congress 
but also serve the public and society, 
and we can't do that without input 
from these various parties of interest 
in the field. 

The legislation that created the 
Sentencing Commission has a long 
history in the Congress. In view of 
this, do you believe politics will play 
any role in the work of the 

All of the commissioners are presi- 
dential appointees. All of us come to 

"Our job is to develop guidelines that not only meet the 
mandate of Congress but also serve the public and 

It's sort of humbling? the Commission with varymg ph.los- 

It sure is. But it has also been ophies. And all of us are committed to 

encouraging to see offers of support developing a set of guidelines which 

" " -^ J. 1 -.1 -i.i„ ,„J ;,..~t- Wo 
coming from so many different direc- 
tions. Of course, the Center has been 

most supportive. The Bureau of Pris- 
ons has offered its assistance; so 
have the Parole Commission, the 

are honest, workable, and just. We 
intend to keep the Congress 
informed as we work toward this 
ultimate goal. We will have free, 
open, and, I'm sure, heated debate. 1 
am confident that our decisions will 

recommendations to tne *^ongress Department of justice, and the Ad- - • tU 

for amendments to the law where ministrative Office. We have a lot of be motivated only by serving tne 
nppjpd. help from a lot of good agencies. interests of justice. 


COUNCILS, from page 3 

berg of the Second Circuit endorsed 
the concept of sharing information 
through their state-federal councils, 
ludge Roger Miner, now on the U.S. 
Court of .Appeals for the Second Cir- 
cuit, characterized the individual 
calendar system as a "more effective 
3nd cost-efficient system of case 
management that offers greater per- 
sonal satisfaction and sense of crafts- 
Tianship. . . than the master calendar 
system." Judge Charles Brieant 
S.D.N.Y.) agreed with ludge Miner, 
ind said that through the use of the 
ndividual calendar system "work is 
lone with fewer judges. When a 
udge has a case from beginning to 

FJC Handbook for Federal 
Judges' Secretaries Revised 

The Center has published a 
revised edition of its Hnndhook for Fed- 
eral judges' Secretnriff. The present 
edition reflects developments since 
the publication of the second edi- 
tion in 1984. The loose-leaf format 
of the handbook, and its dated 
pages, are designed to accommo- 
date future additions and other 
supplementary material. 

A reference aid for both new and 
experienced secretaries to federal 
judges, the handbook describes 
office procedures judges' secretar- 
ies have found useful, it treats such 
subjects as record keeping, mainte- 
nance of chambers calendars and 
office files, correspondence, and 
protocol, as well as general adminis- 
trative matters. Also included are 
sections on case management, the 
organizational structure of the 
court system, and the language and 
process of litigation. 

Copies of the handbook are being 
distributed to all appellate, district, 
and bankruptcy judges and to all 
full-time magistrates. A single copy 
is available to each clerk's office and 
probation office upon request to 
the Information Services Office, 
1520 H St., N.W., Washington, DC 
20005. Enclose a self-addressed, 
gummed mailing label, preferably 
franked (3 lb.). Please do not send 
an envelope. 

end he becomes a 'craftsman' as 
opposed to an 'assembly-line worker.' " 
(For other comments on the individ- 
ual calendar system, see the inter- 
view with Chief judge Constance 
Baker Motley (S.D.N.Y.) in The Third 
Brnnch. vol. 17, no. 12, Dec. 1985, at p. 
7.) Though New York's court system 
is committed to convert to the indi- 
vidual assignment system. Chief 
ludge Wachtler reminded the 
audience that the nature of their 
existing format made it essential to 
retain some flexibility, at least 
initially, to determine how changes 
can best be made. 

In the South, council meetings con- 
tinued with an emphasis on habeas 
corpus proceedings in the states of 
Georgia, Alabama, and North 

The Federal Judicial Center con- 
tinued its support of these meetings 
through reimbursement of traveland 
per diem expenses as well as by pro- 
viding speakers. Professor Ira Rob- 
bins of American University Law 
School, now a judicial Fellow at the 
Center, attended meetings in these 
states (some of the meetings extend- 
ing into a second day) to work out 
better procedures for handling trou- 
blesome issues that come to both the 
state and federal courts, particularly 
in capital cases. Professor Robbins 
also spoke about habeas corpus 
procedures at a meeting of U.S. mag- 
istrates in September, and in January 
he will repeat this talk when another 
group of magistrates meets. (The 
Center makes his lecture. The New Fed- 
eral Habeas Corpus: Options and Alterna- 
tives for the Federal judge or Magistrate. 
available to federal judicial personnel 
on audiocassettes. To borrow a copy, 
write to Information Services, 1520 
H St., N.W., Washington, DC 20005, 
or call FTS 633-6365.) 

Litigation, a quarterly put out by the 
Litigation Section of the American 
Bar Association, contains a relevant 
article on federal jurisdiction by Pro- 
fessor Thomas E. Baker, of Texas 
Tech University, now a Judicial Fel- 
low at the Supreme Court. See Litiga- 
tion, vol. 11, no. 3 (Spring 1985). ■ 

FJC Report on Rule 11 
Sanctions Available 

All Empirical Study of Rule U Sanc- 
tions, by Saul M. Kassin, a Judicial 
Fellow during 1984-1985, was 
recently published by the Center. 

In an effort to determine how dis- 
trict judges interpret and apply rule 
11 of the Federal Rules of Civil 
Procedure, the author surveyed the 
reactions of federal district judges 
to a series of hypothetical situa- 
tions, drawn from actual cases in 
which rule 11 sanctions were 
requested. The study outlines 292 
respondents' standards for impos- 
ing sanctions, the rationales articu- 
lated by the judges, the kinds of 
sanctions imposed, and the rela- 
tionship between the surveyed 
judges' opinions and their expecta- 
tions of how their colleagues would 
rule on the same issues. 

The case descriptions presented 
to the respondents, the accompany- 
ing questionnaire, and a number of 
tables summarizing the study's 
findings are included in the report. 
Copies of this report can be 
obtained by writing to Information 
Services, 1520 H St., N.W., 
Washington, DC 20005. Enclose a 
self-addressed, gummed mailing 
label, preferably franked (10 oun- 
ces). Please do not send an 



Duross Fitzpatrick, U.S. District 

Judge, M.D. Ga., Nov. 14 
Robert J. Bryan, U.S. District Judge, 

W.D. Wash., Dec. 4 
Miriam G. Cedarbaum, U.S. District 

Judge, S.D.N.Y., Dec. 4 
Walter J. Gex III, U.S. District Judge, 

S.D. Miss., Dec. 4 
David R. F^ansen, U.S. District Judge, 

N.D. Iowa, Dec. 4 
Danny J. Boggs, U.S. Circuit Judge, 
6th Cir., Dec. 9 

See PERSONNEL, page 10 


Colleagues Remember Justice Stewart, Praise His Personal 
Intellectual Qualities and Contributions to the Court 

On Dec. 7, 1985, the Supreme 
Court released the following com- 
ments from the Justices on the death 
of Justice Stewart. 

The Chief Justice 

For more than two decades lustice 
Stewart gave dedicated and distin- 
guished service to our country; first 
on the Court of Appeals (for the 6th 
Circuit) and then on the Supreme 
Court. His death removes a splendid 
jurist from the Bench. We mourn his 

Justice Brennan 

Justice Stewart was more than a 
colleague and a very great and distin- 
guished justice. He was a very close 
personal friend. I shall miss him very 

Justice White 

He was a great and extremely 
enjoyable colleage and 1 have missed 

him very much. 1 am sure he has left 
his mark in the books. Mrs. Stewart 
has all of Marion's and my sympathy. 

Justice Marshall 

He was truly great as a justice and 
as an American. He always put his 
country ahead of everything else. 

Justice Blackmun 

Potter Stewart carved out a distin- 
guished career on the federal appel- 
late bench. He added to the Supreme 
Court a basic centrist vision. 

Justice Powell 

lustice Stewart's ability as a jurist 
of great distinction is documented in 
some 80 volumes of the U.S. Reports. 
His highly constructive role in the 
day-to-day functioning of the Court 
can only be known by those privi- 
leged to serve with him. He often led 
in working out a consensus. He had 
the rare ability to be, at the same 

Administrative Office's 1985 Report on Federal 
Court Management Statistics Available 

The Administrative Office of the 
U.S. Courts has released an annual 
report. Federal Court Mnnagement Stntis- 
tics. The report contains information 
on the workload of federal judges 
during the years ended |une30, 1980, 
through lune 30, 1985. The informa- 
tion is compiled from reports submit- 
ted to the Administrative Office by 
the clerks of the courts. 

The report shows that the percent- 
age change in total filings in the 
Court of Appeals for the District of 
Columbia was up by 58.1 percent in 
comparison to the previous year, 
while total filings in the courts of 
appeals for the Second, Third, and 
Fifth Circuits were down slightly. 
Total filings in the Fourth Circuit 
were up by 17.5 percent, and in the 
Eleventh Circuit by 12.4 percent, in 
the courts of appeals for the 1 irst. 
Sixth, Seventh, l.ighth. Ninth, and 
Tenth Circuits, total filings were up 

time, a forceful advocate and a gener- 
ous colleague. 

Justice Rehnquist 

He was a good friend and a first 
rate judge. 

Justice Stevens 

Potter Stewart was a good friend 
and a great justice. Hehas been a true 
source of inspiration for me and I 
shall miss him more than 1 can say. 

Justice O'Connor 

I am particularly aware of the 
strong role played by Justice Stewart 
because I occupy the seat on the 
Court which he vacated in 1981. He 
devoted his life to public service and 
used his exceptional intellect for the 
enhancement of the quality of life for 
all citizens of this country. He was 
greatly admired by all his colleagues 
and his legion of friends throughout 
the land. 

by varying percentages, but in each of 
these six circuits the increase was less 
than 10 percent. 

For all of the circuit courts of 
appeals taken together, total filings 
were up by 5.9 percent over the pre- 
vious year. 

in the district courts, total filings in 
a year's time ranged from over 1 1,000 
in the Southern District of New York 
to fewer than 1,000 in some sparsely 
populated districts. 

The report reflects a 1984 change 
in the court of appeals statistical 
reporting criteria. Court of appeals 
workload statistics are shown as 
actions per panel because cases are 
generally handled by panels of three 
judges, while district court workload 
statistics are divided by the number 
of authorized judgeship positions in 
each court to provide the workload 
per judgeship. ■ 

Positions Available 

Circuit Executive, U.S. Court of Appeals 
for the Ninth Circuit. Salary to $e8,700 See 
28 use. § 332(e) and (f) for special qualifica- 
tions and general functions. To apply, send 
resume to Chief ludge lames R. Browning, 
US. Court of Appeals, P.O. Box 547, San 
Francisco, CA 04IOI- 

Assistant Circuit Executive for Legal 
Affairs, U.S. Court of Appeals for the Ninth 
Circuit. Salary from $2b,3Il to $31,619. 
Applicants must be attorneys with minimum 
of two years' legal experience and active mem- 
bership in a federal bar. To apply, send resume 
by Ian. 20 to Richard Wieking, Acting Circuit 
Hxecutive, U.S. Court of Appeals, P.O. Box 
42008, San Francisco, CA 04141. 

Clerk, U.S. Bankruptcy Court for the 
Northern District of Georgia. Salary to 
$08,700. To apply, send resume by Ian. 15 to Ben 
F4. Carter, District Court Executive, 2211 US. 
Courthouse, 75 Spring St., Atlanta, CA 33035. 

United States Bankruptcy Judge. Salary 
$08. 400; 1 4-year appointment. Vacancies will 
oiiur m the following districts; S.D. Miss., 
W,l) I a (two vacancies), and W,l). Tex. For 
qualification standards and to apply by Feb. 
14, contact l.ydiaC. Comberrel, Circuit Exec- 
utive, U.S. C ourt of Appeals, bOO Camp St., 
New Orleans, 1 A 70130. 




The publications listed below may be of interest 
to The Third Branch readers. Only those pre- 
ceded by a checkmark are available through the 
Center. When ordering copies, please refer to the 
document's author and title or other description. 
Requests should be in writing, accompanied by a 
self -addressed, gummed mailing label, preferably 
franked (but do tiot send an envelope!, and addressed 
to Federal Judicial Center, Information Services, 
1 520 H Street, N.W., Washington, DC 20005. 

"Annual Eighth Circuit Survey." 18 Crnghton 
Law Rivitw 1003 (1985). 

\/ Brennan, William ]., Jr., "In Defense of 
Dissents." Address at Hastings College of Law, 
Nov. 18, 1985. 

Bork, Robert H. "Styles in Constitutional 
Theory." 26 South Texas Law journal 383 (1985). 
\J Bork, Robert H. "The Constitution, 
Original Intent, and Economic Rights." 
Address at University of San Diego Law 
School, Nov. 18, 1985. 

Butzner, John D., and Mary Nash Kelly. 
"Certification: Assuring the Primacy of State 
Law in the Fourth Circuit," in "Fourth Circuit 
Review." 42 \Nnshington & Lee Lnw Review 449 

Clor, Harry M. "Judical Statesmanship and 
Constitutional Interpretation." 26 South Texns 
lnw journnl 397 (1985). 

Graglia, Lino A. "Judicial Review on the 
Basis of 'Regime Principles': A Prescription for 
Government by Judges." 26 South Texns Lnw 
burnni 435 (1985). 

Kurland, Philip B. "Public Policy, the Consti- 
:ution, and the Supreme Court." 12 Northern 
Kentucky Law Review 181 (1985). 

McDermott, John T. "Personal Jurisdiction: 
rhe Hidden Agendas in the Supreme Court 
Decision." 10 Vermont Ijjw Review 1 (1985). 

Miner, Roger J. "A Judge's Advice to Today's 
-aw Graduates." 57 New York Stale Bar journal 6 
Nov. 1985). 

Options To Reduce Prison Crowding. National 
nstituteof Justice/NCJRS, 1985. 

Robbins, Ira P. Prisoners and the Lnw. Clark 
'oardman, 1985. 

"Seventh Circuit Review." 61 Chicago-Kent 
aw Review (1985). 

Smith, Loren A. "Judicialization: The Twi- 
gbt of Administrative Law." 85 Duke Law jour- 
n/ 427 (1985). 

von Hirsch, Andrew. Past or Future Crimes. 
'eserveihiess and Dangerousness in the Sentencing of 
riminnls. Rutgers University Press, 1985. 

Wilson, James G. "The Most Sacred Text: 
he Supreme Court's Use of The Federalist Pap- 
s." 1985 Briglww Young University Law Review 65 

The Chief justice congratuhtes members of the Sentencing Commission: (top, left to 
right) Michael K. Block, Helen C. Corrothers, Paul H. Robinson, and the Chief 
Justice; (bottom, left to right) the Chief Justice, Judge William W. Wilkins, Jr., llene 
hi. Nagel, judge George E. MacKinnon, and judge Stephen G. Breyer. ' 

Federal Courts' Budget Approved 

The buciget for the federal courts 
and their supporting personnel (exclu- 
sive of the U.S. Supreme Court, the 
Court of Appeals for the Federal 
Circuit, and the Court of International 
Trade) was approved by Congress 
Dec. 6 and signed by the President in 
the amount of $997,850,000 for 
17,162 positions, an increase of 687 
positions. The amount requested was 
$1,067,051,000 for 17,756 positions. 

Were amounts for all courts 
included, the cumulative total 
approved would be $1,066,925,000. 
This is the second fiscal year the total 
budget for all federal courts has 
exceeded a billion dollars. 

An amount of $32,750,000 is 
included for court security, which will 
support 888 contract security officers, 
who are under the supervision of the 
U.S. Marshals Service— an increase of 
38 over 1985. 

The House and Senate Conference 
action resulted in a denial of the 

request of $2,000,000 for a design for 
an office building on the United States 
Capitol grounds intended to house 
both the Administrative Office and 
the Federal Judicial Center. The confer- 
ees also restored $2,210,000, which is 
one-half of the one percent salary fund 
reduction that the Senate applied 
against "Salaries of Supporting 

The conferees included 100 addi- 
tional officer positions (50 for proba- 
tion and 50 for pretrial) and 50 
additional clerical positions (25 for 
probation and 25 for pretrial). The 75 
positions provided specifically for 
pretrial services are exclusively for dis- 
tricts with pretrial services organized 
outside probation and should be allo- 
cated to metropolitan districts with a 
total of six or more authorized judge- 
ships. The 7b probation positions may 
be used to provide pretrial services 
through the probation office. 

10 # 



STEWART, from page 3 

preference .iiid the proper role of a 
judge. '|T|he first duty of <i justice,' he 
said, is 'to remove from his 
work his own moral, philosophical, 
political, or religious beliefs.' " 

Attorney Lloyd N. Cutler, who 
argued five cases before the Supreme 
Court during lustice Stewart's 
tenure, noted in the HIarvard Law 
Review that "lustice Stewart relished 
the oral argument above all aspects of 

PERSONNEL, from page 7 


Frank X. Altimari, U.S. Circuit Judge, 

2nd Cir., Dec. 16 
Glenn L. Archer, Jr., U.S. Circuit 

Judge, Fed. Cir., Dec. 16 
Bobby Ray Baldock, U.S. Circuit 

Judge, 10th Cir., Dec. 16 
John T. Ncxinan, Jr., U.S. Circuit 

Judge, 9th Cir., Dec. 16 
Deanell Reece Tacha, U.S. Circuit 

Judge, 10th Cir., Dec. 16 
David R. Thompson, U.S. Circuit 

Judge, 9th Cir., Dec. 16 
MorrisS. Arnold, U.S. District Judge, 

W.D. Ark., Dec. 16 

his judicial chores, lie believed that 
most close cases turned on the quality 
of the oral argument, and he 
contributed enormously to its 
quality." Mr. Cutler stated that 
"perhaps ||ustice Stewart'sl finest 
judicial quality has been his 
imperviousness to typecasting." 

A former clerk of justice Stewart, 
jerold H. Israel, has written that in 
his opinions as a lustice, lustice 

Slcw.irt was ordinarily "very wary of 
imposing any broad, rather absolute 
limits an the exercise of govern- 
nuntal power, although most willing 
to examine the facts of the particular 
case to determine whether that 
power has been abused in the 
situation presented there." 

(Ft)r comments from the justices 
on the death of their colleague, see 
p. 8.) ■ 

Garrett E. Brown, Jr., U.S. District 

Judge, D.N.J., Dec. 16 
Patrick A. Conmy, U.S. District 

Judge, D.N.D., Dec. 16 
Duross Fitzpatrick, U.S. District 

Judge, M.D. Ga., Dec. 16 
Lynn N. Hughes, U.S. District Judge, 

S.D. Tex., Dec. 16 
Alan B. Johnson, U.S. District Judge, 

D. Wyo., Dec. 16 
Harry D. Leinenweber, U.S. District 

Judge, N.D. III., Dec. 16 
J. Spencer Letts, U.S. District Judge, 

CD. Cal., Dec. 16 
Robert L. Miller, Jr., U.S. District 

Judge, N.D. Ind., Dec. 16 

George H. Revercomb, U.S. District 
Judge, D.D.C., Dec. 16 

Stanley Sporkin, U.S. District Judge, 
D.D.C., Dec. 16 

Dickran M. Tevrizian, Jr., U.S. Dis- 
trict Judge, CD. Cal., Dec. 16 

James L. Buckley, U.S. Circuit Judge, 
D.C Cir., Dec. 17 


Potter Stewart, Associate Justice, 
Supreme Court of the United 
States (Retired), Dec. 7 





VoL 18 No. 1 January 1986 

The Federal Judicial Center 
Dolley Madison House 
1520 H Street, N.W. 
Washington, DC 20005 

Official Business 

Postage and 

fees paid 

United States 







«IM U 



epuhf AHomey General D. Lowell Jensen Discusses 
is Role in Operation of Department of Justice 

Ot'puly Attorney General D. Lowell 
sen was born in Utah but later moved to 
tmeda County, California. He received his 
krgraduate and law degrees from the Uni- 
iity of California at Berkeley. After serv- 
in the Army from 1952 to 1954, he was 
mty District Attorney of Alameda 
inty (1955-1966). He was appointed 
Irict Attorney for Oaklatid. California, 
1969 and was elected to that position in 
'C. 1974, and 1978. 
Ar. Jensen served a term as President of v 
California District Attorneys' Associa- 
. He was an officer of the National Dis- 

Attorneys' Association and a founding 
iber of the Association's Commission on 
im/ Witness Assistance. 
I February 1981, President Reagan 
inated Mr. Jensen to he Assistant Attor- 
General in charge of the Criminal Divi- 
From there promotions followed to 
Kiate Attorney General under Attorney 
nal William French Smith and now to 
'ity Attorney General under Attorney 
nal Edwin Meese. 

/ould you please describe what 
r responsibilities are as Deputy 
3rney General? 
he Deputy Attorney General is 

number two position of the 
'artment of Justice, and that 
:er has responsibility, essentially, 
all the day-by-day operations of 

Department. My duties range 
'ss the entire face of the 

Department — personnel issues, 
budget issues, policy development 
and operational issues. I answer to 
the Attorney General and act in lieu 

D. ]j)well Jensen 

of the Attorney General in those 
instances where it is required. 

Did the Attorney General restruc- 
ture the office and its jurisdiction 
when he came into office? 

That's essentially correct. The 
Department's organization at the 
time Ed Schmults served as Deputy 
had the civil functions of the Depart- 
ment reporting through the Deputy 
See JENSEN, page 4 

'x> AIMS Explained in New Two-Part Videotapes 

iie Center has recently completed 
Jeo program on New AIMS, its 
ellate Information Management 
em (see related story, p. 7). The 
;ram. New AIMS, is in two parts of 
It 45 minutes each and features 
ert Hoecker, Chief Deputy Clerk 
the Tenth Circuit Court of 
eals. Intended primarily for those 
■ested in the detailed operation of 
system, it provides a thorough 

explanation of aspects of the New 
AIMS case opening and docketing 

Those within the federal courts 
wishing to borrow the program 
should write to the Center's Informa- 
tion Services, 1520 H Street, N.W., 
Washington, DC 20005. We regret 
that we cannot accommodate orders 
by telephone. Please specify the for- 
mat you want (VHS or U-matic). ■ 

Chief Justice Releases 
1985 Year-End Report 

In his 1985 annual report on the 
judiciary, the Chief Justice cited facts 
and statistics that show an alarming 
increase in the workload of the fed- 
eral courts, and an equally disturbing 
lack of judge power to handle this 
workload. Some of the points made 
by the Chief Justice follow. 

• Though public attention has 
recently focused on the national 
budget, there exists another deficit 
with which we must cope, our "judi- 
cial deficit" in the federal court sys- 
tem, which continues to grow. 

• The number of filings increased 
over last year's total, both in the dis- 
trict courts (5 percent in civil cases 
and 7 percent in criminal cases) and in 
the courts of appeals (6 percent). The 
district judges increased their termi- 
nations (11 percent in civil cases and 
almost 5 percent in criminal cases) 
and the circuit judges increased their 
dispositions (around 1 percent). The 
dispositions during the 1985 year 
were accomplished with approxi- 
mately the same number of judges, 
"already overworked," the Chief Jus- 
tice reported. 

• The 85 additional judgeships 
created by Congress in July of 1984 
brought more judges to the courts, 
yet there are still 56 vacancies in the 
new judgeship positions as well as 41 
vacancies caused by the usual attri- 
tion. "[T]he total number [of judges], 
when available, are too few to deal 
with the ever-rising caseload and 

See REPORT, page 2 

Inside. . . 

New FJC Division 3 

Committee on AO Appointed .... 4 
New Judiciary Building 

Study Authorized 7 

Sentencing Commission Deadline 
Extended 10 



REPORT, from page 1 

enlarging jurisdiction. I have urged 
the President and the Senate to speed 
up the process." 

• As in the past, the Chief Justice 
had words of commendation for the 
senior judges— federal judges who 
retire but continue to serve. Their 
aggregate contribution is equivalent 
to the work of at least 70 full-time 
active judges, said the Chief Justice, 
and, "Without the work of [these 
judges] the federal judicial system 
would have foundered." The Chief 
Justice is pressing Congress to 
remove the "Social Security barriers" 
that will cause a loss of services of 

senior judges. 

• Sentencing Commission. Among 

other things, the Comprehensive 
Crime Control Act of 1984 created a 
United States Sentencing Commis- 
sion, charged with the promulgation 
of guidelines for district courts to fol- 
low in sentencing. The commission- 
ers have already commenced their 
work and the Administrative Office 
and the Federal Judicial Center are 
lending their support to this effort. 

• Quality advocacy. After six years of 
study by the so-called "Devitt Com- 
mittee," and pilot projects conducted 
by 13 pilot district courts under the 
chairmanship of Chief Judge James 
Lawrence King, the Judicial Confer- 
ence has recommended that all dis- 
trict courts consider various 
programs to ensure that lawyers 
admitted to practice in the federal 
courts meet at least minimum stand- 
ards. In his annual report, the Chief 
Justice concludes that "This recom- 
mendation marks a milestone in a 



Published monthly by the Administrative 
Office of the US. Courts and the Federal |udi- 
cial Center Inquiries or changes of address 
should be directed to 1520 H Street, N.W., 
Washington, [XL 20005. 

Alice I. O'Donnell, Director, Division of Inter- 
ludicial Affairs and Information Services, Fed- 
eral ludicial Center. 

debate that may be traced to studies 
that were generated a dozen years 
ago. Every District Court should 
require a basic admission standard." 
Developments important to both 
state and federal courts were also 
reported by the Chief Justice and 

• State Justice Institute. Always a 
proponent of assistance to the state 
courts, the Chief Justice added his 
endorsement to that of the Confer- 
ence of Chief Justices to urge that 
Congress create a State Justice Insti- 
tute. This legislation became law 
Nov. 8, 1984, and an appropriation of 
$8 million will soon be available to 
assist the states in improving their 
administration of justice. This money 
will encourage judicial training and 
continuing education, and will sup- 
port studies and projects dealing with 
sentencing, alternatives to litigation, 
and other improvements. 

• Prisons and Corrections. Prog- 
ress on improvement of prison pro- 
grams for education, vocational train- 
ing, and employment was realized in 
1985. An outgrowth of the 1983 
Scandanavian prison visit and the 
1984 National Task Force on Prison 
Industries is the National Center for 
Innovation in Corrections, affiliated 
with the George Washington Uni- 
versity in Washington, D.C. After a 
year of accomplishments, the 
National Center has a remarkable 
record of 21 concepts for prison 
industry projects that link private 
employers with prison systems. The 
National Center hopes that eventu- 
ally this coalition will bring about 
employment of at least 50 percent of 
the nearly 500,000 state and federal 
prison inmates (the national prisoner 
employment average is now around 
10 percent). Of great significance is 
the inclusion in the Comprehensive 
Crime Control Act of 1984 of a sec- 
tion that exempts up to 20 pilot pro- 
grams from protectionist laws that 
previously prohibited transportation 
of prison-made goods in interstate 

The above is a partial listing of the 
contents of the entire Year-End 




Thomas E. Scott, U.S. District Judge, 

S.D. Fla., Aug. 16 
Alan A. McDonald, U.S. District 

Judge, E.D. Wash., Oct. 18 
Brian B. Duff, U.S. District Judge, 

N.D. 111., Oct. 25 
Alan H. Nevas, U.S. District Judge, D. 

Conn., Oct. 26 
Glen H. Davidson, U.S. District 

Judge, N.D. Miss., Oct. 29 
David Sam, U.S. District Judge, D. 

Utah, Nov. 1 
Laurence H. Silberman, U.S. Circuit 

Judge, D.C. Cir., Nov. 1 
Richard H. Battey, U.S. District 

Judge, D.S.D., Nov. 2 
John S. Rhoades, Sr., U.S. District 

Judge, S.D. Cal., Nov. 4 
Stephen H. Anderson, U.S. Circuit 

Judge, 10th Cir., Nov. 8 
Ferdinand F. Fernandez, U.S. District . 
Judge, CD. Cal., Nov. 8 ( 

David B. Sentelle, U.S. District Judge, 

W.D.N.C, Nov. 8 
Robert E. Cowen, U.S. District Judge, 

D.N.J. , Nov. 12 
Jane R. Roth, U.S. District Judge, D. 

Del., Nov. 16 
Edmund V. Ludwig, U.S. District 

Judge, E.D. Pa., Nov. 18 
Alex Kozinski, U.S. Circuit Judge, 9th 
Cir., Dec. 10 


Frederick Lacey, U.S. District Judge, 

D.N.J., Feb. 1 
Senior Status 
William H. Orrick, Jr., U.S. District 

Judge, N.D. Cal., Oct. 31 
Jesse E. Eschbach, U.S. Circuit Judge, 

7th Cir., Nov. 4 


Ray McNichols, U.S. District Judge, 
D. Idaho, Dec 25 

Report. Copies of the entire 15-page 
report are available by writing to 
Information Services, 1520 H St., 
N.W., Washington, DC 20005. Please 
enclose a self-addressed, gummed 
mailing label (but do not send an 


Russell Wheeler to Direct 
Center's New Special 
Educational Services 

A new Federal Judicial Center Divi- 
sion of Special Educational Services 
has been approved by the Center's 
Board to accommodate the increase 
in the training responsibilities of the 
Center. The new Division will be 
headed by Russell R. Wheeler, cur- 
rently Deputy Director of the Con- 
tinuing Education and Training 
Division. Mr. Wheeler was one of the 
first Judicial Fellows when the pro- 
gram was started in 1973. At the 
Supreme Court he serv.ed as 
Research Associate to the Adminis- 
trative Assistant to the Chief Justice. 
From the Court he went to the 
National Center for State Courts, 
where he was a Senior Staff Assist- 
ant. In 1977, he returned to Washing- 
ton to become Assistant Director of 
the Federal Judicial Center. 

The Division of Continuing Educa- 
tion and Training, directed by Ken- 
neth C. Crawford, will continue to be 
responsible for the Center's orienta- 
tion and continuing education semi- 
nars and workshops for judges and 
supporting personnel. That Division 
will also continue to work with the 
Center's network of training coordi- 
nators and to administer the special- 
ized tuition support program. 

The new Division will be primarily 
responsible for the production of 
audio and video media education pro- 
grams; educational publications, 
ncluding reference manuals and 
■ponographs; administration of the 
-enter's programs on sentencing 
policies and practices; and the grow- 
ng number of special seminars and 
workshops, especially for judges, 
ncluding the annual summer pro- 
grams for circuit and district judges, 
iatellite video seminars, and educa- 
ional programs in support of state- 
ederal judicial councils. 

This organizational change will 
equire no additional personnel or 
unds and is effective Feb. 1, 1986. ■ 

The Chief Justice with some of the members of the Judicial Conference's Bicentennial Com- 
mittee: (I. to r.) Judge Damon Keith (6th Cir.), Judge Helen Nies (Fed. Civ.), Chief Justice 
Burger, Chief Judge Robert Murphy (Md. Ct. App.), and Judge Dolores Sloviter (3rd 
Cir.). See story, page 10. 

Legislation Affecting the Federal Judiciary Introduced 
in the First Session of the 99th Congress 

H.R. 3 570, the judicial Improvements 
Act of 1985. Passed by the House on 
Dec. 16, this omnibus bill effects 
reforms in several areas. The bill con- 
tains Judicial Conference-recom- 
mended reforms in the Judicial 
Survivors' Annuities Program. 
Among the reforms implemented by 
H.R. 3570 are increased annuity 
amounts for beneficiaries; preserva- 
tion of the program's financial integ- 
rity; adjustments in eligibility 
standards; and provisions authoriz- 
ing all currently serving judges to 
either "opt in" or "opt out" of the 
program. Because the existing pro- 
gram is an elective one, most new 
judges have in recent years elected 
not to participate. There have been 

See CONGRESS, page 8 


Feb. 9-15 Seminar for Newly 
Appointed District Court 

Feb. 10-12 Video Orientation 
Seminar for Newly Ap- 
pointed Bankruptcy Judges 

Congress adjourned in 1985 with- 
out taking final action to extend the 
temporary exemption of senior 
judges from Social Security taxation. 
Action should be taken to perma- 
nently exempt senior judges in early 
1986. Appropriate language was 
approved by both the House and 
Senate before Dec. 20, but failed of 
final passage due to controversy con- 
cerning a totally unrelated provision 
in the bill containing the senior judge 

A number of other legislative mea- 
sures of interest to the federal judi- 
ciary were passed by the House and 
were still pending when Congress 
adjourned. They are summarized 

H.R. 3550, the Rules Enabling Act of 
1985. Passed by the House on Dec. 9, 
this bill has as its purpose revision of 
the process by which rules of proce- 
dure used in federal judicial proceed- 
ings, and the Federal Rules of 
Evidence, become effective. The bill 
provides for greater participation in 
the rule-making process by all inter- 
ested persons, including members of 
the bench, bar, and public. 



JENSEN, from page 1 

to the Attorney General and the 
criminal functions reporting initially 
to an Associate Attorney General, 
then to the Deputy, and then to the 
Attorney General. My background is 
in the criminal law area and I was the 
Associate. What we contemplate in 
terms of structure during my service 
as Deputy would have the criminal 
portions of the Department report- 
ing directly through me to the Attor- 
ney General, and the duties of the 
Associate essentially being related to 
the civil activities of the Department. 
You have a California background. 
Did you know the Attorney General 
and the President in California? 

I've been a prosecutor my whole 
professional career and was in the 
district attorney's office in Alameda 
County when Ed Meese joined that 
office. We were colleagues in the 
office for several years, and then, 
when President Reagan was elected 
as Governor of California, Mr. Meese 
went to the staff of the Governor and 
basically conducted liaison activities 
with all law enforcement entities in 
the state. One of my responsibilities 
at that time, as District Attorney in 
Alameda County— I had by then 
become District Attorney— was to 
represent the California District 
Attorneys' Association on legislative 
issues. So I dealt with Mr. Meese in 
that capacity and with the President 
at that time as Governor of 

Each administration selects cer- 
tain kinds of cases to concentrate on. 
Do you have any special programs 
that will have your and the Attorney 
General's special interest? What 
kinds of cases do you anticipate will 
be filed in the federal courts? 

The emphasis by the Department 
on drug trafficking cases will con- 
tinue. If you go back to the early days 
of Attorney General Smith's admin- 
istration, a task force report on vio- 
lent crime was prepared. In essence it 
set our focus on drug trafficking as a 
top priority. And so we will continue 
to do just that. Our other criminal 

areas of enforcement interest will be 
in organized crime and in white- 
collar crime, so all those activities will 
receive focus in terms of what can be 
expected of cases to be filed in federal 

Anything additional? 

Those are really the basic areas. 
Obviously, our responsibilities run 
across the whole range of the crimi- 
nal justice world, and when you talk 
about priorities you don't exclude 
other kinds of responsibilities. 

ment, for example, there is a great ( 
deal of overlap and concurrent juris- 
diction over criminal conduct, and 
there is a real need that we fashion 
our efforts so that they are comple- 
mentary rather than independent or 

President Reagan has a Legal 
Affairs Council that meets from time 
to time. Do you have any relation- 
ship to that council? 

At this time, in this term, there are 
two councils at the policy cabinet 

'I've been a prosecutor my whole professional career.' 

But you only have so many U.S. 
attorneys and so many lawyers in the 
Department, and there is a lot of 
crime in this country. 

That's right, and our activities will 
include enforcement of any federal 
law. You realize that most of the 
prosecution that takes place in the 
world of criminal justice is at the state 
and local level. That's an area of 
emphasis also; we have to build very 
strong partnerships with state and 
local entities. 

Have you established special 
arrangements with state entities to 
assure that federal and state efforts 
are coordinated, especially in the 
criminal area? 

That was one of the subjects that 
was discussed in the task force 
report— the need for a system of 
cooperation with state and local enti- 
ties. Attorney General Smith ordered 
each U.S. attorney to reach out to 
form law enforcement coordinating 
committees across the country and 
that is taking place in a very success- 
ful sort of way— to build a partner- 
ship with state and local law 
enforcement officials. 

Are these groups functioning in a 
manner similar to the state-federal 
judicial councils suggested by the 
Chief Justice? 

To some extent. The Chief Justice 
is absolutely correct; you can't look at 
the state and local systems and the 
federal system as separate, autono- 
mous entities. They have a great deal 
of overlap. In our world of enforce- 

level. One is a domestic policycouncil 
and the other is an economic policy 
council. The Attorney General is the 
chair in the domestic policy council, 
and so that relationship continues in 
that fashion. And, obviously, 1 have a 
relationship to assist the Attorney 
General as the chair. 

Do you attend the council meet- 
ings when the Attorney General is i 
out of the city or otherwise unable to 

That's the role of the Deputy, and I 
do on those occasions; when he is not 
able to attend I represent the Depart- 
ment in his stead. 

When the Attorney General met 
with the Judicial Conference of the 
United States last September, were 
you in attendance? 

No, I was not. 

Chief Justice Appoints 
Committee on AO 

The Chief Justice has appointed 
an Ad Hoc Advisory Committee of 
Judges to examine the Administra- 
tive Office of the U.S. Courts con- 
cerning organization, responsi- 
bilities, personnel, and inter- and 
intra-judicial relationships. 

Senior Judge Edward J. Devitt (D. 
Minn.) has been appointed Chair- 
man of the Committee. Other 
members of the Committee are 
Chief Judges James Lawrence King 
(S.D. Fla.), Jack B. Weinstein 
(E.D.N. v.), and Robert J. McNi- 
chols (E.D. Wash.). [Judge Ray 
McNichols, initially appointed to 
the Committee, died Dec. 25.1 



The Attorney General mentioned 
then that he would move quickly on 
20 circuit court judgeships and 66 
district court judgeships. Is any sig- 
nificant progress being made to pro- 
cess these judgeships? 

I think that there has been a good 
deal of progress. As you know, the 
process includes a series of steps. 
There are only, perhaps, a dozen 
positions in both the circuit courts 
and the district courts where no per- 
son has been identified as the candi- 
date. Every other candidate has been 
identified, and they are either at 
stages where there are background 
investigations under way, and they 
are being considered by the American 
Bar Association for their recommen- 
dations; or they are awaiting Senate 
action. At this point the full course 
has been run for many appointments. 
The Senate has now confirmed some 
60 judges of the circuit and district 
courts across the country in this con- 
gressional term and another 10 to 15 
positions are awaiting Senate action 
at this time. [Mr. Jensen's statistics 
refer to the Department's estimates 

handle the judgeships in conjunction 
with Mr. Fielding at the White 

The Office of Legal Policy handles 
the preliminary review and process- 
ing of potential candidates here in the 
Department; then a discussion takes 
place in the Department and recom- 
mendations are made by the Attor- 
ney General. They are then discussed 
and reviewed in joint sessions with 
White House representatives and the 
Counsel for the President, Fred 

Are special efforts being made to 
have judgeship nominations repre- 
sentative of minorities and women? 

Our efforts in terms of identifying 
candidates for presidential appoint- 
ment are to find the highest quality 
judges in terms of legal experience, 
legal skill, and judicial qualities. 
That's our emphasis, and I think we 
find qualified candidates in all areas 
regardless of their ethnic or racial 

Do you advise the candidates that 
come through here? 

We don't give advice to the candi- 

"We have to build very strong partnerships with state 
and local entities." 

as of last October.] 

So a lot of it awaits action in the 

Well, there are different people 
who have parts of this process, and I 
think one has to look at the whole 
process to see how it is moving. 

Some attorneys general in the past 
have not sought or considered the 
independent investigations and eval- 
uations of candidates for federal 
judgeships conducted by the Ameri- 
can Bar Association. Do you think 
the ABA is helpful to the Depart- 
ment of Justice? 

Well, this process now includes a 
reference to the American Bar Asso- 
ciation for their review and recom- 
mendations of all the appointments 
to the district courts and the circuit 
courts. I think it is helpful. 

Does the Office of Legal Policy 

dates. We think the candidates know 
what the issues are when they have 
their confirmation hearings, and I 
guess they have now become a mat- 
ter of discussion. Candidates know 
what that is, and that's part of the 
confirmation process. 

The Department of Justice 
requested permission to participate 
in the argument in the abortion case 
and that was denied. [Thornburgh v. 
American College of Obstetricians and 
Gynecologists, argued in the Supreme 
Court Nov. 5, 1985.] Did you con- 
sider that as a setback? 

1 wouldn't consider that a setback. 
Our participation there is submission 
of an amicus brief. It's very unusual 
that in circumstances of that nature 
amici be given time to argue, so we 
don't consider that a setback at all. 
We are well aware that that is very 

unusual — that those kinds of 
requests would be granted— so that 
we were not surprised by the denial. 

Do you propose to make similar 
requests in other cases in order to 
advance other issues to the Court that 
you think are important for decision 
on that level? 

1 don't think that there is any dif- 
ference from our normal procedures. 
We would either participate directly 
in those cases or seek amicus partici- 
pation, with briefs or arguments. 
And, once again, 1 don't think it is the 
usual case that in our status as an 
amicus we would be given time to 
argue. There are such cases, but 
they're infrequent. 

Do you have some pending now? 

1 don't know if there are any where 
we have been given time for 

The first order list for this term of 
court came out Oct. 7. How did you 
fare on that? 

D. Lowell Jensen 

There are several areas where the 
Department is a participant because 
of our interest. We've already men- 
tioned the abortion cases. There are a 
number of cases involving issues in 
public employment, cases such as the 
post-StoHs cases, that are of great 
interest to the Department. 

There are also cases involving reso- 
lution of issues in voting rights. 
There are cases dealing with the use 
of challenges in jury selection. Those 
See JENSEN, page 6 




JENSEN, from page 5 

are all of interest to the Department 
and they are all part of this term. 

The Attorney General and the 
Deputy Attorney General have 
traditionally taken part in some of 
the cases argued before the Supreme 
Court. Do you plan on doing that? 

There's no specific case I know of 
right now that would be of such 
interest. The problem is time; 
whether we would have enough time 
to do it. 

A recent press release related to 
the FBI's computer system, and a 
plan to permit closer scrutiny of 
those individuals suspected of but 
not yet charged with committing 
white-collar crimes. Congressman 
Edwards of California referred to 
this when it came up at the 
Department's budget hearing, and he 
said that he was troubled by this plan 
because such a scheme could include 
innocent people; that he believed it 
"could include Communists and 
homosexuals." Some, he felt, could 
get swept up in a computer system 
that might be too comprehensive. He 
went so far as to say that the 
Department should go slowly on 
this, and to suggest that Congress 
might opt for limiting the 
Department's funds so that they 
could not be used for that particular 
computer program. 

Let me see if I could respond to 
that. We are obviously very sensitive 
to the issues that surround the use of 
the so-called NCIC system. It is an 
incredibly important law en- 
forcement tool, one that must be 
maintained, and we are as concerned 
and as aware of the sets of issues as 
the Congressman is. We do not want 
to do anything that will jeopardize 
the ongoing use of NCIC. We think 
this is a positive, forward type of 
system use. It isn't one that we need 
to move on with any other degree of 
expedition other than the fact that it 
would be an enhancement and a 
positive step forward. I think that 
maybe there is some misunder- 
standing about the system. The 
system that we contemplate putting 

in place— and essentially it would be 
experimental — to see whether or not 
it is useful— would simply allow 
investigative agencies, police 
agencies that have existing ongoing 
investigations, in fraud areas to be 
specifically defined, to simply notify 
the NCIC of the fact that there is 
such an investigation. If twoagencies 
put identical entries into the system, 
the system would instantly show a 
"match." The system would then no- 
tify the police agencies involved that 
they should speak to each other about 
what appeared to be related investi- 
gative efforts. So nothing would go 

"I have been interested 
in seeing the exclusion- 
ary rule limited to an 
appropriate definition, 
and I think that the 
recent actions of the 
Supreme Court were 
consistent with that." 

into the system other than the fact 
that there were ongoing investi- 
gations. Essentially what the system 
will do is replace with technology the 
ability of an agency to know that 
there are parallel investigations 
going on without making several 
thousand phone calls around the 
country. It's really not one that jeop- 
ardizes privacy interests at all, and 
the notion that it would include, as 
the Congressman said. Communists 
or homosexuals. It would only 
include them if they happened to be 
subjects of fraud investigations. 

Did you get what you needed in the 

I think that the budget appropria- 
tions for NCIC are intact. We will be 
sensitive to this and we will not move 
in a way that would affect the appro- 
priation. But we are going forward 
with the design and implementation 
of the system, and I think it is consis- 
tent with the appropriations. 

Do you have your budget now for 
the whole Department? 

The present Congress is consider- 
ing the 1986 budget and it's still in 

process — fiscal '86. \ 

Counting the whole budget, it 
must be enormous. 

In one sense it's a great deal, and in 
another sense it's not so great. The 
budget is roughly at a level of $4 bil- 
lion for the total Department. That's 
everything. There are something like 
60,000 persons who work for the 
Department of Justice. Most of them 
are in the investigative agencies — 
bureaus like the FBI, the prison sys- 
tem, and the Immigration and 
Naturalization Service. That's where 
most of the dollars and people are 
located. And then, of course, there's a 
good deal for the civil and criminal 
responsibilities both in the litigative 
divisions here in Washington and in 
the offices of U.S. attorneys. In one 
sense $4 billion sounds like a lot. In 
another sense, it's not a great deal for 
a department with responsibility for 
all federal criminal and civil activities 
in the United States. 

How many lawyers do you have ^ 
just in Washington? ' 

It's roughly 2,000, either here in 
Washington or in field offices that are 
part of the litigative divisions cen- 
tered here in Washington. 

What is the status of appointments 
for the State Justice Institute? 

They are presently pending for 
appointment by the President. There 
are two levels of appointments. One 
comes from judges who have been 
nominated by the Judicial Confer- 
ence. The names of those judges have 
gone over to the White House and 
they are presently being considered. 
Then the law contemplates that four 
other persons would be nominated, 
and a list of those persons has now 
been submitted to the White House. 
They are all presently pending and 
relatively shortly we expect that the 
appointments will be made. 

What are some of your long-range 
plans for the Department that you 
would like to see come to fruition 
during your term in office? 

We've already discussed some of i 
the areas of interest for us; forexam- 
ple, the criminal enforcement pro- 
gram, which we will continue to 
refine and improve. In a general 


sense, I would like to see that we 
make a permanent part of the crimi- 
nal justice landscape the federal, 
state, and local relationships I spoke 
of. I believe in that very strongly. I 
think we've made a good start, how- 
ever, but I think that we must contin- 
uously improve in order, as I say, to 
make it permanent. From a manage- 
ment standpoint, I would like to see 
us improve the Department's man- 
agement information systems. We're 
on a growth curve as far as that is 
concerned; however, I would like to 
see us get to a much higher level of 
capacity in our use of technology in 
the area of management information. 
You have written and spoken pub- 
licly about the exclusionary rule. Do 
you have a special interest in the 

I don't have any, other than the fact 
that, as I said, I've been a prosecutor 
my whole life and have watched the 
exclusionary rule come into existence 
and be defined over time. I have been 
interested in seeing the exclusionary 
rule limited to an appropriate defini- 
tion, and I think that the recent 
actions of the Supreme Court were 
consistent with that— in terms of 
their Leon decision as to the scope of 
the exclusionary rule in cases where a 
search warrant is involved. I frankly 
would like to see the same kind of 
concepts as in Leon move forward in 
nonwarrant cases. I think that's 
where we ought to be as far as the 
exclusionary rule is concerned. 

What's the status of the Scaduto 
case? He was the one who sued the 
crime commission because he was 
subpoenaed. Is the Department 
going to continue its interest in the 

There is current consideration of 
that. My recollection is that the issue 
is whether or not we would seek cer- 
tiorari, and that is now being consid- 
ered. We think the Scaduto case is a 
very important case in that it does 
possibly affect a whole series of com- 
missions that are out there and that 
have been there in the past. I think 
that it needs resolution. I'm not sure 
Jxactly where we are on that track, 
t>ut It is a matter being considered. ■ 

Ninth Circuit's New AIMS Program in Operation 

The Ninth Circuit Court of 
Appeals will open the new year with a 
full-scale test of the case-opening por- 
tion of the New Appellate Informa- 
tion Management System (New 
AIMS) that has been developed by 
the Federal Judicial Center in cooper- 
ation with the Fourth, Ninth, and 
Tenth Circuits acting as pilot court 

Cathy A. Catterson, Ninth Circuit 
Clerk, reports that as of Jan. 3 her 
office started entering all new 
appeals into New AIMS. As a security 
precaution during the early stages of 
the test, the office is making frequent 
printed copies of the docketed infor- 
mation. As the accuracy and stability 
of the system are validated, the 
reliance on printed copies as backups 
will decrease, until, finally, printed 
docket sheets and other reports will 
be created only as needed for the 
court and parties. 

The other two pilot courts will also 
soon begin entering data into the 
fully automated New AIMS docket- 
ing system. At present, the Fourth 
and Tenth Circuits project a March 
starting date. 

These tests of the New AIMS sys- 
tem mark the first use of fully elec- 
tronic docketing for the federal 
courts of appeals. Fully electronic 
docketing has been used to manage 
the felony dockets in many of the 
largest federal district courts since 
the early 1980s, when the Federal 
Judicial Center's COURTRAN Crim- 
inal system was transferred as an 
operational system from the Federal 
Judicial Center to the Administrative 
Office for subsequent maintenance 
and expansion. The goals of both sys- 
tems are to speed the generation and 
retrieval of important case manage- 
ment information and to eliminate 
unnecessary reliance on and storage 
of paper records. 

The New AIMS system is the first 
full-docketing records replacement 
system to be operated on computers 
installed in the courthouse and oper- 
ated by local court staff. The earlier 

COURTRAN Criminal system 
depended on very large computers 
based in Washington and linked to 
the courts over telephone lines. 
Improvements and efficiencies in 
new computer and software technol- 
ogies now allow all information pro- 
cessing to be controlled in the court 
by specially trained members of the 
clerk's office staff. Decentralized 
operation of programs designed and 
constructed according to national 
technical and substantive specifica- 
tions is the hallmark of automation 
under the Five-Year Plan for Automation 
in the United States Courts, which is the 
document that guides the activities of 
the Federal Judicial Center and the 
Administrative Office in this genera- 
tion of federal court automation 

New AIMS is the first of three full- 
docketing systems the Center 
intends to transfer to the Adminis- 
trative Office for maintenance and 
expansion. Another is a complete 
bankruptcy system, called BANCAP, 
which the Center is developing with 
the cooperation of the Western Dis- 
trict of New York, the Western Dis- 
trict of Texas, and the Western 
District of Washington. The third, 
and perhaps most complex, system is 
designed to fill the needs for docket- 
ing and managing the civil docket in 
the district courts. It is under full 
pilot test in the Arizona and the Dis- 
trict of Columbia district courts, with 
further assistance from the Northern 
District of Georgia and the Western 
District of Texas. ■ 

New Judiciary Building 

After many years of "urgings," 
Congress responded to the Chief 
Justice's request for a building to 
house ail administrative personnel 
of the Judiciary in one place. The 
Administrative Office now occu- 
pies space in six locations and the 
Federal Judicial Center occupies 
space in four locations. Congress 
authorized $2 million for studies 
and plans. 


CONGRESS, from page 3 

several reasons for this, principally 
the absence of a "floor amount 
annuity" for survivors, the relatively 
small amounts of annuities derived 
under the standard computation for- 
mula, and inadequate statutorily 
mandated amounts payable to sur- 
viving children. 

H.R. 3570 also addresses an exist- 
ing problem concerning removal of 
cases from state to federal courts. 
Under present legislation, a litigant 
who tries to remove his or her case to 
federal court may have the case dis- 
missed if the state court in which the 
action was initially brought did not 
have jurisdiction. H.R. 3570 would 
abolish the present judicial rule that 
an improvidently brought state civil 
action, the subject matter of which is 
within the exclusive jurisdiction of a 
federal district court, must be dis- 
missed when it is removed to the fed- 
eral district court by the defendant 
under 28 U.S.C. § 1441. 

H.R. 3570 also would authorize 
payment of actual travel expenses to 
judges, not to exceed a ceiling amount 
established by the Judicial Confer- 
ence, rather than the Office of Per- 
sonnel Management. In the past 
judges have suffered financial losses 
when required to travel extensively, 
because the OPM-a u thorized 
amounts allocated for expenses have 
not adequately reflected regional cost 

H.R. 3570 would also bring the fee 
schedule for the United States Dis- 
trict Court for the District of Colum- 
bia into line with fee schedules in 
other district courts. (Presently, it 
costs only $10 to file a case in the 
United States District Court for the 
District of Columbia.) The exemp- 
tion of this district court from the 
general fee provision originated in a 
period preceding the creation of the 
local Superior Court system in the 
District of Columbia. 

Finally, H.R. 3570 clarifies the 
jurisdiction of the federal courts of 
appeals for judicial review of orders 
issued by the Federal Maritime Com- 


Study released. The Fund for Mod- 
ern Courts, Inc., a nonprofit court 
reform organization located in New 
York, has released a study of the suc- 
cess of women and minorities in 
achieving judicial office. The study 
finds that such success depends to a 
large extent upon the method of 
selection, with a higher percentage of 
women and minorities chosen 
through an appointive process than 
through an elective system. (Sfc'The 
Source," p. 9.) 

New newsletter. The American 
Bar Association Lawyers Conference 
Task Force on the Reduction of Lit- 
igation Cost and Delay has issued the 
first issue of Change Exchange, a quar- 
terly newsletter. The newsletter will 
report on efforts to reduce trial costs 
and delays. 

Rand tort study. The Rand Corpo- 
ration's Institute for Civil Justice, 
after conducting a two-year study of 
asbestos litigation, has concluded 
that a national commission is needed 
to address the problems that mass 
toxic-tort lawsuits are creating. The 
report, released in December, said 
that the commission is needed to 
study alternatives to the traditional 
tort system. 

FJCs Summer 1986 Seminar to Discuss ConsHiuHonal 
Adjudication and the Judicial Process 

The Center will sponsor a seminar celebration, give attention to their 

historical origins and evolution. 

The seminar is being developed in 
consultation with a Center commit- 
tee appointed by the Chief Justice and 
chaired by Chief Judge Howard Brat- 
ton (D.N.M.). Serving with him are 
Judges Daniel Friedman (Fed. Cir.), 
Antonin Scalia (D.C. Cir.), and Louis 
Pollak (E.D. Pa.). 

Judges wishing to participate in the 
seminar should indicate that fact by 
letter to Russell Wheeler, Director of 
the Center's new Division of Special 
Educational Services (see related 
story, page 3). To ensure considera- 
tion, letters should be received by 
Feb. 17. ■ 

mission and the Maritime Adminis- 
tration in the Department of 
Transportation, and contains a tech- 
nical corrections section renumber- 
ing three separate sections 1364 in 
the United States Code. 

H.R. 3 004, the Criminal juslia' Act 
Revision of 1985. Passed by the House 
on Dec. 9, this bill would implement 
improvements in the administration 
of the Criminal Justice Act (CJA), 
including increases in compensation 
levels that may be paid to attorneys. 
The bill would raise the maximum 
hourly compensation rate to $50, but 
permit variations to as high as $75 
per hour in those districts where such 
need is shown. The bill would elimi- 
nate the in-court and out-of-court 
hourly rate differential. The bill also 
would increase the overall per-case 
compensation maximums from 
$2,000 to $5,000 for felonies, from 
$800 to $1,500 for misdemeanors, to 
$3,000 for appeals, and to $1,000 for 
any other representation provided 
under the CJA, and increase the 
amount that may be incurred for the 
services of experts. 

Matters still pending before the 
House Judiciary Committee for 
further consideration include court- 
ordered arbitration, creation of an 
intercircuit tribunal, and the 
Supreme Court's workload 

on "Constitutional Adjudication and 
the Judicial Process in the Federal 
Courts" from June 16 to 20, 1986, on 
the campus of the School of Law, 
Boalt Hall, at the University of Cali- 
fornia at Berkeley. 

The seminar will treat selected 
constitutional questions that are on 
federal court dockets in the 1980s and 
consider basic structural issues, such 
as federalism and judicial review, in 
the context of current litigation 
trends. Although the seminar's prim- 
ary focus is on problems of substance 
and procedure in their contemporary 
manifestations, it will also, with an 
eye to the constitutional bicentennial 


Three New Reports Released by Center 

The Center recently published 
Attorneys' Views of Local Rules Limiting 
Interrogatories, by John Shapard and 
Carroll Seron. 

This staff paper reports the results 
of a survey undertaken at the request 
of the Advisory Committee on Civil 
Rules of the Judicial Conference of 

Positions Available 

Clerk, U.S. District Court, Western Dis- 
trict of Michigan. Commencing Apr. 1, 1986. 
Salary to $07,040. Requirements include 10 
years' administrative experience (law practice 
may be substituted for general administrative 
experience; college education and degrees in 
public, business, or judicial administration or 
law may be substituted partially for general 
administrative experience). Send resume 
(original and three copies) by Feb. 28 to Ste- 
phen W. Karr, U.S. Magistrate, 666 Fed. 
Building, Grand Rapids, Ml 49503 

Clerk, U.S. District Court, District of Kan- 
sas. Salary to $68,700. To apply, send resume 
by .Apr. 1 to Earl E. O'Connor, Chief Judge, 
U.S. District Court, 122 Federal Building, 
P.O. Box 1428, Kansas City, KS 66117. 

Chief Deputy Clerk, Tenth Circuit Court 
of Appeals, Denver, CO. Salary $37,599 to 
So7,940. High school graduate with at least 
six years' progressively responsible adminis- 
trative or professional experience. College 
education may be substituted for general 
experience. Master's degree or graduate 
study may be substituted for two years' spe- 
cialized experience. 

Send resume and three copies, by Feb 15, to 
Robert L. Hoecker, Clerk Designate, US 
Court of Appeals, C-404 U.S. Courthouse, 
Denver, CO 80294, Phone: 303/844-3157 or 
FTS 564-3157. 

Assistant to Circuit Executive, Fifth Circuit 
Court of Appeals. Salary to $44,430. Assists 
with Judicial Council matters, process for 
selection of bankruptcy judges, special 
research and study projects, and court plan- 
ning. Requires undergraduate degree and 
work experience that clearly demonstrates 
administrative capability. Law degree helpful. 
Send resume by Mar. 15, 1986, to Lydia C. 
Comberrel, Circuit Executive, U.S. Court of 
Appeals, 600 Camp St., New Orleans, LA 

Assistant to Circuit Executive, Fifth Circuit 
Court of Appeals. Salary to $44,430, based on 
experience and qualifications. Serves as the 
circuit's space and facilities specialist, assists 
with compiling and evaluating court statistics 
and preparing statistical reports, and on spe- 
cial research projects. Degree in public, busi- 
ness, or judicial administration desirable. 
Send resume by March 15, 1986, to Lydia G 
Comberrel, Circuit Executive, U.S. Court of 
Appeals, 600 Camp St., New Orleans, LA 


the United States to help inform the 
Committee on proposals to impose 
limitations on interrogatories on a 
national basis. 

Responses to the survey question- 
naire were received from 271 attor- 
neys who practice in one or more of 
12 federal judicial districts with local 
district court rules limiting interrog- 
atories. On the basis of these 
responses, the paper's authors con- 
clude that such rules are effective in 
precluding unwarranted use of inter- 
rogatories without causing signifi- 
cant interference with the 
appropriate use of that discovery 

The paper includes tables setting 
out the data derived from the survey 
as well as the questions asked the 

The Center has released a publica- 
tion entitled Deciding Cases Without 
Argument: A Description of Procedures in 
the Courts of Appeals, by Joe Cecil and 
Donna Stienstra of the Center's 
Research Division. The report de- 
scribes the procedures and standards 
adopted by the federal courts of 
appeals for deciding cases without 
oral argument. It presents available 
statistical information, reviews local 
rules, and discusses responses of the 
clerks of the courts of appeals to a 
brief survey regarding court prac- 
tices. The report does not attempt to 
evaluate the screening programs. 

The Center recently published Dis- 
ability Appeals in Social Security Programs, 
by Harvard Law School Professor 
Lance Liebman. This 45-page mono- 
graph analyzes how the courts have 
treated the basic substantive issues 
that disability appeals typically pre- 
sent. These include the duration of 
the disability, the nature of the 
alleged medical impairment, prob- 
lems with medical evidence, the con- 
cept of "substantial gainful activity," 
the relationship between the origin 
of a disability and the claimant's 
covered status, termination of eligi- 
bility, and various administrative 



The publications listed below may be of interest 
to The Third Branch readers. 

Community Mediation In Massachusetts: A Decade 
of Development, 1975-1985. Distric Court of the 
Trial Court of the Commonwealth of Massa- 
chusetts, 1986. 

Finn, Peter. "Collaboration Between the 
ludiciary and Victim-Witness Assistance Pro- 
grams." 69 judicature 192(1986). 

Cold, Michael E. "The Similarity of Congres- 
sional and Judicial Lawmaking Under Title VII 
of the Civil Rights Act of 1964." 18 U.C. Davis 
Law Review 721 (1985). 

Maggiolo, Walter. Techniques of Mediation. 
Oceana Publications, Inc. 1985. 

Morris, Richard B. "The Constitutional 
Thought of John Jay." This Constitution : A Bicen- 
tennial Chronicle. Project '87 of the American 
Historical Association and the American Politi- 
cal Science Association. Winter 1985. 

Sabino, Anthony M. "jury Trials in the 
Bankruptcy Court: A Continuing Controv- 
ersy." 90 Commercial Law journal 342 (1985). 

The Success of \Nomen and Minorities in Achieving 
judicial Office: The Selection Process. Fund for Mod- 
ern Courts, Inc., 1985. 

Survey of judicial Salaries. National Center for 
State Courts, Nov. 1985. 

Swanson , John. "Privacy Limitations on 
Civil Discovery in Federal and California Prac- 
tice." 17 Pacific Law journal 1 (1985). 

"Symposium on Bankruptcy." 38 Vanderhilt 
Law Review 665 (1985). 

Tribe, Laurence H. Constitutional Choices. Har- 
vard, 1985. 

Umbreit, Mark. "Victim Offender Mediation and 
Judicial Leadership." 69 judicature 202 (1986). 

Winick, Bruce J. " Restructuring Compet- 
ency to Stand Trial." 32 UCLA Law Review 921 

Although the bulk of the mono- 
graph describes the administrative 
procedures and legal issues involved 
in disability appeals, the paper also 
calls attention to the tension between 
bureaucratic imperatives and the 
judiciary's obligation to ensure fair 
treatment for individuals. 

Copies of these papers can be 
obtained by writing to Information 
Services, 1520 H Street, N.W., 
Washington, DC 20005. Enclose a 
self-addressed, gummed mailing 
label, preferably franked (but please 
do not send an envelope). ■ 


10^ ^„, 


Chief Justice Appoints Judicial Conference 
Committee on Bicentennial of U.S. Constitution 

A Judicial Conference Committee 
on the Bicentennial of the U.S. Con- 
stitution has been appointed by the 
Chief Justice as a special committee of 
the Judicial Conference of the United 
States. The Committee will dedicate 
its efforts toward encouraging the 
observation and celebration of the 
Constitution's bicentennial by the 
Judicial Branch. 

The Committee, chaired by Chief 
Judge Howard T. Markey of the U.S. 
Court of Appeals for the Federal Cir- 
cuit, held its initial, organizational 
meeting at the Supreme Court on 
Dec. 18 to begin planning for events 
extending from the 200th anniver- 
sary date of the Constitution's sign- 
ing, Sept. 17, 1987, through the 1989 

ratification anniversary. 

Chief Judge Markey has 
announced that the Committee 
members, working with the Chief 
Justice, will design and implement 
programs and recommend them to 
circuit and district court bicenten- 
nial committees on behalf of the 
Judicial Conference. The Judicial 
Conference Committee on the 
Bicentennial of the U.S. Constitu- 
tion will work closely with the 
National Commission on the Bicen- 
tennial of the U.S. Constitution. 
Chief Judge Markey will be liaison 
officer with the National Commis- 
sion; Chief Justice Burger will be an 
ex officio member of the Judicial 
Conference Committee. ■ 

Deadline for Sentencing 
Commission Extended 

The Senate has passed and Presi- 
dent Reagan has signed legislation 
extending the time within which 
the U.S. Sentencing Commission 
must complete its guidelines. {The 
Thin! Brnnch last month reported 
that such a measure had already 
passed the House.) 

The legislation extended the 
deadline by which the Commission 
must report a set of guidelines to 
Congress to April 1987. In addition, 
it altered the dates of the sentenc- 
ing and parole aspects of the Com- 
prehensive Crime Control Act, 
keeping the Parole Commission in 
operation for five years from the 
date the initial sentencing guide- 
lines become effective. 

The amendments to the sentenc- 
ing laws that were to become effec- 
tive Nov. 1, 1986, will now become 
effective Nov. 1, 1987. 





Vol. 18 No. 2 February 1986 

The Federal Judicial Center 
DoUey Madison House 
1520 H Street, N.W. 
Washington, DC 20005 

Official Business 

Postage and 

fees paid 

United States 










MARCH 1986 

Veteran Legislator Praises Judiciary, 
Shares Perspective on Federal Courts 

Congressman Robert W. Kastenmeier (D 
is.) is Chairman of the House Judiciary 
bcommittee on CourtAfivil Liberties, and 
• Administration o^^nstice. 
After Army s^JfW, Com:essman Kasten- 
'ier received jf^aio d^ee from the Uni- 
'sity of V^fnsin^d ptl^iced law in 
atertowi3^is.,<^i 19^ to 1958. He 

servedXthre^ar sjj^as a justice of the 
Iff for Jefferson a^ Dodge Counties 
?55-1958>. He has represented his dis- 
:t since 1958. 28 continuous years in 

The Subcommittee of^i^ie^i the Congress- 
n is Chairman JiAs [(^slative and over- 
hl responsibility for^ bfie United States court 
km and for various elements within the 
oartment ofjustice. It also has legislative 
wnsibilily in several general subject areas, 
luding court reform; corrections and pri- 
s; the financing of legal services: attorneys' 
: alternatives to litigation; patents, trade- 
rks. and copyrights; privacy; and First and 
rth Amendment rights, 
congressman Kastenmeier has sponsored 
-> enacted into law to reform the magis- 
es system, to create the U.S. Court of 
nals for the Federal Circuit, to provide 

1 reform, to establish a bankruptcy court 
tm. to divide the Fifth Circuit into two 

and autonomous circuits (the Fifth and 
Eleventh), and to establish a federal judi- 
discipline mechanism. He was a sponsor 
'egislation to create the State Justice 

Cong. Robert W. Kastenmeier 

In 1985 the Congressman received the 
Distinguished Service Award from the 
National Center for State Courts, the Warren 
E. Burger Award of the Institute for Court 
Management, and a distinguished service 
award from the Association of U.S. Magis- 
trates, all in recognition of his work in 
improving the administration of justice in 
federal and state courts. 

You were interviewed by The Third 
Branch in June 1979; have the past 
several years caused you to change 
your general philosophy about fed- 
eral courts? 

No, indeed not. Today, I very 
See KASTENMEIER, page 4 

lief Justice Asks Social Security Change 

'n Jan. 21, 1986, Chief Justice 
ger sent to the Speaker of the 
ise and the President of the 
ate proposed remedial legislation 
arrect an inequity to senior judges 
he 1983 Social Security amend- 
its, "which, if left unaltered, could 
- a grave impact on the federal 
:iary's ability to effectively man- 
its ever-increasing workload," 
Chief Justice said, 
nee Jan. 1, all 276 senior judges 

have been subject to a reduction m 
their retirement salaries through 
Social Security deductions if they 
perform any judicial duties. The 
income reduction for a senior judge 
who continues to serve has been cal- 
culated at between $3,000 and 
$12,000 annually, depending on a 
judge's circumstances. 

The work of senior judges last year 
equaled the output of at least 85 
active-service judges. ■ 

Organized Crime Panel 
Submits Report, Makes 

The President's Commission on 
Organized Crime, chaired by Judge 
Irving R. Kaufman (2nd Cir.), has 
submitted a report. The Edge: Organized 
Crime, Business, and Labor Unions, to 
President Reagan and Attorney Gen- 
eral Edwin Meese. The Commission 
earlier issued an interim report 
entitled The Cash Connection: Organized 
Crime, Financial Institutions and Money 
Laundering, which recommended mea- 
sures that, if taken, would curb 
organized crime's easy access to the 
financial institutions of the United 

The second report, released Jan. 14, 
1986, examines the problem of labor 
and management racketeering by 
organized crime in the United States. 
The report describes the impact on 
legitimate businesses of labor- 
management racketeering schemes, 
and explains how organized crime, 
through domination or influence of 
labor organizations, employers, and 
businesses, can control segments of 
entire economic markets and can dis- 
tort the cost of doing business to 
marketplace participants through 
theft, extortion, bribery, price-fixing, 
fraud, and restraint of trade. 

The Commission makes a series of 
administrative and legislative recom- 
mendations in both the civil and crim- 
inal law areas, and urges 
See CRIME, page 3 

Inside. . . 

Devitt Award Recipients 
Named p 2 

Sentencing Commission 
Appoints Staff Director, 
General Counsel p. 3 

Orientation Seminar for 

New Circuit Judges p. 3 



Univ. of Nevada Announces 
Degree Program for State 
And Federal Trial Judges 

The University of Nevada (Reno) 
announced in January that the Uni- 
versity, in conjunction with the 
National Judicial College, will offer a 
program leading to a Master of Judi- 
cial Studies to active state and federal 
trial judges who have earned law 
degrees from an ABA-accredited law 
school. Justice James Duke Cameron 
(Sup. Ct. Ariz.), a member of the 
Board of the Judicial College who 
designed the program in cooperation 
with the University, explained that 
requirements include 24 units of 
study and submission of a scholarly 
paper on a previously approved 

Though other universities have 
offered summer programs (including 
the University of Virginia, where 
appellate judges may earn a Master of 
Laws in the Judicial Process), the Uni- 
versity of Nevada's advanced degree 
is the first designed exclusively for 
trial judges. 

Commenting on the new program. 
Justice Florence Murray, Chairman 
of the Board of the National Judicial 
College, said, "It fills a void in the area 
of continuing education for trial 
judges. In addition, it affords those 
trial judges who have been recipients 
of the largess of the University of 
Nevada, through their affiliation 
with the National Judicial College, 
Ian opportunity] to become true 
alumni of the University. It is another 
step in the College's continuing 
efforts to be of service to the judi- 
ciary." ■ 

Judges Campbell and Tamm Receive Devitt Award 


t heTHIKDbranch 

Published monthly by the Administrative 
Office of the U.S Courts and the Federal |udi- 
cial C enter Inquiries or changes of address 
should be directed to 1520 H Street, N W., 
WashinRlon, [XL 20005 

Alice L O'Donnell, Director, Division of Inter- 
ludicial Affairs and Information Services, Fed- 
eral judicial ( enter 

Judge William j. Cnmpbdl 

Judge William J. Campbell and the 
late Judge Edward A. Tamm have 
been named as this year's recipients 
of the highly prestigious Devitt Dis- 
tinguished Service to Justice Award. 
Established in 1982, the award is 
made annually to a federal judge by 
the West Publishing Company "to 
bring public recognition to the contri- 
butions made by federal judges to the 
advancement of the cause of justice." 
Nominations are submitted by 
members of the legal profession and 
then considered by a committee of 

The selection committee members 
currently are Justice Lewis F. Powell, 
Jr., of the Supreme Court of the Uni- 
ted States, Chief Judge James R. 
Browning of the U.S. Court of 
Appeals for the Ninth Circuit, and 
Senior Judge Edward J. Devitt of the 
U.S. District Court for the District of 

Senior Judge William J. Campbell, 
who has 45 years of service to the 
federal courts, was appointed to the 
U.S. District Court for the Northern 
District of Illinois by President 
Franklin D. Roosevelt in 1940, and 
became Chief Judge of that court in 
1959. He took senior status in 1970, 
but his service to the federal courts 
continued. For the past fifteen years, 
the judge has made significant contri- 
butions to the work of the Federal 
Judicial Center, especially in connec- 
tion with the Center's programs and 
workshops. In announcing the award 
the committee noted, "His long-time 

judge Edivard A. Tamm 11906-85) 

direction of national judicial educa- 
tional programs has enhanced the 
quality of justice in this country." 

An honorarium of $10,000 and a 
Swedish crystal obelisk especially 
designed for this award will be pre- 
sented to Judge Campbell at a cere- 
mony later this year. 

Mrs. Edward A. Tamm will receive 
a like award, which will be made post- 
humously to the Judge at a special 
program in Washington next fall. 

Judge Tamm, after a distinguished 
career as Assistant Director of the 
Federal Bureau of Investigation, was 
nominated to the U.S. District Court 
for the District of Columbia by Presi- 
dent Harry S Truman in 1948 and to 
the U.S. Court of Appeals for the Dis- 
trict of Columbia Circuit in 1965. His 
contributions to the work of the Judi- 
cial Conference of the United States 
were many and included the chair- 
manship of the Conference's Com- 
mittee on Judicial Ethics. He was the 
first Chief Judge of the U.S. Emer- 
gency Court of Appeals. In announc- 
ing bis posthumous selection, the 
committee said; "He was also recog- 
nized for establishing and adminis- 
tering a Federal Judiciary Ethics 
program and for supervising the 
annual filing of judges' ethics 

With 45 years of service by Judge 
Campbell and 37 by the late Judge 
Tamm, the aggregate number of 
years' service to the federal courts 
totals 82. In short, they have served 
long and well. * 


Sentencing Commission 
Staff Director, General 
Counsel Announced 

Kay A. Knapp has been named 
Staff Director for the U.S. Sentenc- 
ing Commission. Ms. Knapp is from 
St. Paul, Minn., and was formerly 
Research Director and later Director 
of the Minnesota Sentencing Guide- 
lines Commission (from May 1982 to 
October 1985). Ms. Knapp has an 
extensive background in sentencing 
reform, corrections research, and 
policy formulation. She completed 
Ph.D. course work in political science 
and research methodology at the 
University of Kentucky and has writ- 
ten extensively on criminal justice 
and sentencing issues. 

Denis J. Hauptly, former Senior 
Staff Attorney for the U.S. Court of 
Appeals for the First Circuit, has 
been named General Counsel for the 
U.S. Sentencing Commission. His 
background includes service as Asso- 
ciate Director of the Office of Legis- 
lation in the U.S. Department of 
Justice's Criminal Division, and var- 
ious staff positions in the U.S. Attor- 
ney General's office, including the 
Office of Policy and Planning and the 
Office for Improvement in the 
Administration of Justice. ■ 


Mar. 4-7 Video Orientation Sem- 
inar for Newly Appointed 

Mar. 12-13 Judicial Conference of 
the United States 

Mar. 16-19 Sentencing Institute for 
the Second and Sixth Circuits 

Mar. 19-21 Seminar for Magis- 
trates of the First, Second, 
Third, Fourth, and D.C. 

Mar. 19-21 Workshop for New 
Training Coordinators 

Mar. 24-26 Conference of Metro- 
politan District Chief Judges 

^pr. 2-4 Workshop for Judges of 
the Fourth Circuit 

Chief Justice Burger Notes Constitution's 
Bicentennial in Speech to Lawyers 

Chief Justice Warren Burger deliv- 
ered a speech at the American Bar 
Association midyear meeting, follow- 
ing a 16-year custom. Rather than an 
"annual report" of the type he has 
given at past midyear meetings, the 
Chief Justice spoke instead about 
constitutional history and the upcom- 
ing 200th anniversary of the Consti- 
tution. He stressed in the speech "the 
prominent roles that lawyers played 
in drafting and securing ratification 
of the Constitution." 

The Chief Justice also announced 
that the national Commission on the 
Bicentennial of the Constitution and 
the American Bar Association have 

Supplement to Employment 

Discrimination Study 


The Center recently published 
the second supplement to George 
Rutherglen's Major Issues in the federal 
Law of Employment Discrimination (FJC 
1983). This 62-page supplement 
summarizes developments in 
employment discrimination case 
law from September 1984 through 
August 1985. It also contains a bib- 
liography of recent books and 

Among the topics discussed are 
claims of disparate treatment and 
religious discrimination under Title 
VII of the Civil Rights Act of 1964, 
attorneys' fees, and remedies for 
employment discrimination under 
the Equal Pay Act and the Age Dis- 
crimination in Employment Act. 

It is intended that this supple- 
ment be used with the original pub- 
lication and the first supplement, 
which was published a year ago. 
However, the table of authorities 
that appears in this volume is 

Copies of this supplement may be 
obtained by writing to Information 
Services, 1520 H St., N.W., 
Washington, DC 20005. Enclose a 
self-addressed, gummed mailing 
label, preferably franked (8 oz.), but 
do not send an envelope. 

agreed to join in sponsoring a 
national essay contest on the Consti- 
tution for students in more than 
40,000 high schools. He also dis- 
cussed the project We the People, a se- 
ries of television programs to be 
broadcast over the Public Broadcast- 
ing System in 1987, and other ABA 
programs to trace the historical 
development of constitutional princi- 
ples. . 

CRIME, from page 1 

improvement in the coordination 
among government agencies in com- 
bating organized crime. 

In presenting the report. Judge 
Kaufman commented that "the most 
successful law enforcement efforts 
against organized crime have focused 
on making it more difficult, costly 
and dangerous to realize profits from 
illegal activity. No such effort can be 
complete without attacking the 
organized criminal groups who oper- 
ate in the economic marketplace. 

"The combined and coordinated 
efforts of the private sector and each 
branch of government can reduce 
and eventually eliminate the perni- 
cious involvement of racketeers in 
our economy. ... If these efforts are 
successful, a crippling blow will have 
been dealt to organized crime." 

In addition to Judge Kaufman, 17 
other persons, including Senator 
Strom Thurmond and Congressman 
Peter W. Rodino, serve on the Com- 
mission. ■ 

FJC to Hold Seminar for 
New Circuit Judges 

The Federal Judicial Center will 
hold an orientation seminar for 
newly appointed U.S. circuit judges 
at the Dolley Madison House in 
Washington, D.C, April 14 
through 16. 

A reception will be held for the 
new judges at the Center the eve- 
nmg of April 13. 




KASTENMEIER, from page 1 

strongly feel that the federal courts, 
and indeed also the state courts, are 
doing a good job in terms of federal 
constitutional and statutory man- 
dates. I say this despite the fact that 
judges today have increasingly found 
much greater burdens placed on 
them. There are more cases and the 
cases are more complex. 

The last interview took place some 
six and a half years ago, and that is a 
long time, but my confidence in the 
judicial branch has stayed the same. I 
have stated with conviction to the 
Judicial Conference, that of the three 
branches of the federal govern- 
ment—the judicial, the legislative, 
the executive— the judicial branch is 
held in highest esteem, and I feel that 
the judiciary has earned that esteem. 
From a legislative standpoint, I am 
pleased to try to help the judicial 
branch cope with a number of chal- 
lenges that have occurred in recent 
years, including the massive 
increases in litigation and in caseloads 
that confront the judiciary at every 
level, plus external pressures, includ- 
ing political challenges that have 
taken place in this period, such as 
attacks on court jurisdiction and also 
criticism of thecourtsaboutdecision- 
making abilities. 

Do you feel judicial activism is 
prevalent in the federal and state 
court systems, sometimes beyond 
what is jurisprudentially acceptable? 
It's difficult for me to comment 
about state courts. State courts by 
their very nature are different from 
federal courts and are likely to be at 
some variance, one from the other. 
My only comment on state courts is 
that they tend to mirror judicial expe- 
rience at the federal level. I believe 
that state courts are in the process of 
very substantial improvement in 
resources, in personnel, and gener- 
ally in standards and their ability to 
cope with caseloads and the like. 

With respect to the federal system, 
the term "judicial activism" is one 
that I'm not very fond of because it 
has no clear meaning. It is evident to 
legal scholars that what a judge may 

be constrained to decide in the year 
1985 or 1986 may not have a literal 
nexus with the Constitution as 
drafted in 1787. The problems are so 
different. I would hate to have judges 
who are required to make decisions 
think that if they uttered any 
thought beyond that which appears 
somewhere else they would be 
engaging in judicial activism. 

I know a few years back it was com- 
mon to criticize so-called "liberal 
judges" for judicial activism. The fed- 
eral courts now in terms of their 
theoretical political balance certainly 
are reflective to a considerable 
extent, at least in terms of sheer 
numbers, of this Administration, 
which has five years of appoint- 
ments. Much of judicial activism 
therefore may be activism of judges 
appointed by a conservative Presi- 
dent. But I'm not a critic of that. 

opinion of one cabinet officer. I don't 
know that his predecessor was quite 
as critical in that connection. Frankly, 
such criticism does not help. It does 
not help the system operate, it does 
not help public confidence, it does not 
help respect for the rule of law, to 
make that sort of charge. The charge 
has always been ill founded, and I 
would hope that we are witnessing 
the end of it at this time. 

Do you think federal diversity of 
citizenship jurisdiction will be elimi- 
nated any time soon? 

I think so, one day. Maybe not this 
year or next. I do not feel any longer 
that there is a substantial differential 
in the quality of justice that can be 
rendered by a state trial court or a 
federal district court, both of which 
are in the state and draw jury panels 
from state residents in the normal 
case. But if I were a practicing lawyer. 

"Of the three branches of the federal government ... the 
judicial branch is held in highest esteem." 

My own view is that it ill serves us 
in the Congress or in the executive 
branch or indeed in the Attorney 
General's Office to criticize the judi- 
ciary as being unacceptably engaged 
in judicial activism. It does not help us 
deal with the problems of the judi- 
ciary. It does not help the judiciary, 
and it certainly undercuts, modestly I 
would hope, public confidence in the 
judicial branch. To this extent, if 
there is anything I am a critic of it is 
using these epithets with respect to 
the judiciary, particularly the federal 
judiciary. I would hope that we will 
have passed that period. 

It became a popular subject. 
Yes, it was for a while. Actually, I 
suggested at one point that it came as 
ill grace for a representative of the 
Administration, which has been mak- 
ing all the appointments to the judi- 
ciary for the last five years and which 
will have an opportunity for several 
more years to make such appoint- 
ments, to be criticizing judges for 
judicial activism. But I must say that 
it may be that this is principally the 

I would want as many forums as 
possible— two or more if possible— to 
litigate in. But I don't consider that to 
be a reasonable position today, given 
the question of finite judicial 

While I am not considered a politi- 
cal conservative, I agree basically 
with conservative thinking on the 
nature of federalism— that is to say, 
state issues governed by state law 
ought to be in state courts and not in 
the federal courts, whatever the 
issues are, whether they are tort 
claims or product liability cases. And 
federal issues ought to be in federal 
courts. We had just the opposite not 
too many years ago. If there was a 
federal question and it didn't rise to a 
certain monetary level ($10,000) in 
controversy, a litigant couldn't neces- 
sarily get into a federal court. Bat if 
there was a state question involving a 
state incident and adequate diversity 
of citizenship, there might be juris- 
diction in federal court. It should be 
just the opposite. The matters that 
are properly allocated to the states 

should be in state court and the mat- 
ters that are federal should be in fed- 
eral court. Maybe it's oversimplistic, 
but it's a guiding principle that land a 
number of the members of my sub- 
committee have followed over the 
years. In fact, we've convinced the 
House of this on more than one occa- 
sion, but, regrettably, not the Senate. 
The state courts have been follow- 
ing the federal courts in many 
ways— the Victim and Witness Pro- 
tection Act, for example. Many states 
now have their own victim and wit- 
ness protection acts. Is this a trend? 
I think it is. Historically, it has been 
accepted that federal courts may be 
better forums for many issues than 
state courts. Some people cite the 
higher quality of federal judges and 
the better ability of the federal courts 
to handle matters expeditiously and 
fairly. I think the state court systems 
have worked hard, very consciously, 
for about a decade, maybe longer, to 
upgrade their systems. The issue of 
state-federal disparity always comes 
up in a discussion concerning the pro- 
posed elimination of federal diversity 
of citizenship jurisdiction. It also has 
arisen in the context of, for example, 
the newly created State Justice Insti- 
tute and other devices which are 
designed to improve and give unifor- 
mity to the states with respect to 
judicial standards. It is my conviction, 
however, that the state courts are in 
the process of improvement and have 
made enormous strides in the past 
few years. Growing uniformity 
between the two systems reflects 
much of the ease of the federal rules 
of practice and procedure, improved 
court management techniques, 
standards of selection, and the like. 
Unquestionably, with respect to laws 
involving procedures for handling lit- 
igation, for expediting certain types 
of cases, the states have borrowed 
from the federal system. At the same 
time, in some instances state courts 
have led the federal system. They 
very early used alternative dispute 
resolution mechanisms, such as arbi- 
tration. But in other respects, I think 
state courts have borrowed the best 
of the federal system. It would not be 

Cong. Robert W. Kastenmeier 

incorrect to say that cross- 
fertilization has occurred and both 
systems— federal and state— have 

You have introduced legislation 
(H.R, 3378) that would bring new 
communications technologies- 
electronic mail, cellular telephones, 
data and video transmissions — under 
the Wiretap Act (Omnibus Crime 
Control and Safe Streets Act of 
1968). Why do you believe that legis- 
lation is necessary? In your view, has 
judicial supervision of Title III 
wiretap orders worked well? 

I think judicial supervision has 
worked well. The history of Title III, 
starting nearly 18 or 19 years ago, 
shows that judicial supervision of 
Title III wiretap orders was a contro- 
versial question. Judicial supervision 
went a long way to establishing some 
sort of order with respect to the 
treatment of wiretapping in this 
country. Today, the problem is that 
the law just simply is outdated. It is so 
outmoded that new legislation is 
absolutely necessary. We are not 
alone in saying this. This point has 
been made by, among others, the 
Office of Technology Assessment 
and the General Accounting Office. 
What has happened is that the use 
of various new technologies has been 
tested in the courts. In the absence of 
statutory guidance, the courts have 
had to rule on the application of the 
1968 law to new technologies. Judges 
have had to fill in as best they could 


by construing what ought to be the 
case, at the same time saying that the 
Congress ought to update the Act. 
The Congress, as the policy-making 
branch, is in a position to delineate 
statutorily the usage of the new tech- 
nology in terms of what is appro- 
priately protected as a privacy right 
and how the government and other 
outside parties must respond. The 
courts cannot really do that. Judges 
can rule on a given legal question but 
they cannot make policy. Congress 
alone can do that, and I think we 

We also must be mindful that in the 
year 1986 we may not be able to give 
guidance for more than the next 10 
years. Technology tends to be liter- 
ally outrunning our capacity to antic- 
ipate new uses, new rights or 
impingement upon rights that are 
not now contemplated, and the rela- 
tionship of industries, individuals, 
and the government. Congress must 
establish a very sensitive and delicate 
balance among competing interests. 
Probably we can only do so for a 
limited period of time, but we must 
act now at least for the foreseeable 

You share with the Chief Justice 
an overriding desire and commit- 
ment to improving the correctional 
system, state and federal, in this 
country. What, in the political 
scheme of things, do you envision 
over the next several years for the 
correctional system? What effect 
will the ongoing budget cuts— 20 
percent in the appropriations avail- 
able to the Bureau of Prisons— have 
on the work of those in the correc- 
tional field? 

I would like to set forth a positive 
agenda that we could accomplish in 
the corrections field. Such an agenda 
would include the Chief Justice's 
"factories with fences" concept. I'm 
supportive, as are many others, of his 
notion that we can make a prison 
experience, regrettable as it is, some- 
what more helpful to the individual 
and to the institution and to society. 
Proposals for correctional improve- 
ments pale in connection with other 
See KASTENMEIER, page 6 

6 ^ 



KASTENMEIER, from page 5 

practical problems that we now face. 
Some are budgetary, some are socie- 
tal. Today we have higher numbers 
of people who are convicted of 
increasingly violent crimes. The pri- 
son system has a very difficult time 
dealing with these individuals, more 
difficult, I might say, than existed a 
generation ago. The profile of indi- 
viduals incarcerated in maximum 
security institutions is very poor, by 
and large, in terms of the potential 
for those individuals to benefit 
behaviorally from incarceration. We 
have, unfortunately, become a more 
violent society and the correctional 
system has had to bear the brunt of 
that change. At the same time, rather 
than devote more resources to the 
seemingly intractable problem of 
how to deal with violent people, we 
have given-up the notion that we are 
going to treat them and cure them of 
personality disorders so there will be 
no recidivism. I agree with Norm 
Carlson that our major obligation 
today is to provide humane incarcera- 
tion for inmates consistent with 
administrative standards, or court- 
imposed standards— constitutional 
standards certainly— and to enable 
these individuals to have educational, 
work, and other opportunities if they 
can be helped. 

We are facing cutbacks, and if 
Gramm-Rudman-Hollings is hard on 
some government agencies it will be 
doubly hard on prisons. It will have 
an enormous, negative impact. There 
is not very much budgetary flexibility 
in prisons. One can argue that we 
have so much committed to defense 
in terms of dollars that cutbacks in 
defense can be digested without great 
difficulty. But in prisons that is not 
the case. So much of corrections is in 
personnel, so much of it is in daily 
care of prisoners. We already have 
unacceptable overcrowding in most 
of our institutions in the federal sys- 
tem. And overcrowding is certainly 
true in the state systems. 

We have nowhere to go but down. 1 
say this as a challenge to us in connec- 
tion with what we can look forward 

to for the next three or four years. 
Hopefully, this challenge will inspire 
us to treat this question somewhat 
separately, otherwise we will find 
courts faced with serious prison 
overcrowding being forced to con- 
sider releasing individuals, perhaps 
putting some individuals out on the 
streets who ought not be there for 
the protection of society. We will see 
the creation of chaotic conditions. In 
short, we have to have resources to 
devote to prison systems even if we, 
as reformers, would love to see peo- 
ple in halfway houses and in pro- 
grams that did not involve prisons. 
Because of violence in our society, 
and because of the intractability of 
some of the problems, including nar- 
cotics-related matters, we will still 
have to have prisons. 

"We have to have resour- 
ces to devote to prison 
systems even if we . . . 
would love to see people 
in programs that did not 
involve prisons." 

]ust to exacerbate the situation, we 
have perhaps 1,500 to 1,800 Cubans 
who are being held for immigration 
purposes in the Atlanta Penitentiary. 

There is a trend in corrections that 
we examined recently in my commit- 
tee involving privatization of prisons 
or correctional facilities. I am not 
clear how privatization can be done at 
a state or federal level in the era of 
Gramm-Rudman-Hollings, because 
the private organizations intend to 
make money at their endeavor, sub- 
stituting for what has traditionally 
been a governmental role. How pri- 
vate enterprise can make money and 
still deliver at reduced dollars avail- 
able for corrections, while respecting 
constitutional and policy standards 
for incarceration, I do not under- 
stand. I'm very skeptical about that. 
Privatization is one of the few really 
new ideas that seems to have some 
currency, and, even though I am a 
skeptic about it, I'm afraid that it 
would have a better chance in an era 

in which we had increased dollars 
going into corrections. 

So I am not optimistic about the 
next few years except in the sense 
that I think we will go through a 
trauma which may enable us thereaf- 
ter to deal somewhat differently, and, 
hopefully, more effectively with the 
question of prisons and corrections in 

You have been the guiding force 
behind virtually all of the major judi- 
cial reform legislation for a number 
of years. What motivates your untir- 
ing efforts for judicial reform? 

My work has been intermittent, 
since we get other issues that often 
intervene, so that sometimes I find it 
hard to continue work on any given 
piece of legislation. But my feeling is 
that there is always an unfinished 
agenda and there always will be. 
Court improvement has been a goal 
shared by many— the American Bar 
Association certainly; the American 
judiciary, of course; and many others 
who have devoted themselves to how 
we can contribute to an improvement 
in our justice system. I feel I am just 
one of those persons. 

Sometimes improvements are 
probably not seen as improvements 
by everyone. 1 am thinking specifi- 
cally of judicial tenure and judicial 
ethics legislation. But I do think that 
we need public confidence in our 
institutions and I think in the federal 
system the judiciary has changed 
enormously in the last decade or so. It 
is no longer a single judge whom 
almost everyone knew serving virtu- 
ally alone in the district, riding a sort 
of circuit of his or her own. From a 
nationwide perspective, the judiciary 
is essentially more bureaucratic and 
impersonal and certainly less collegial 
than it once was. We have seen these 
changes come about, and we've 
needed to create impersonal institu- 
tional and administrative means of 
dealing with problems such as com- 
plaints about judges. That's where 
judicial discipline and tenure and 
ethics come into play and a need for 
statutory enactment of provisions 

See KASTENMEIER, page 8 



URGE Center Publishes New Audiovisual Media Catalog 

The publications listed below may be of interest 
to The Third Branch readers. 

Abrahamson, Shirley S. "Redefining 
Roles: The Victims' Rights Movement." 
1985 Utah Law Review 517. 

Amar, Akhil. "A Neo-Federalist View 
of Article III: Separating the Two Tiers of 
Federal Jurisdiction." 65 Boston University 
Law Review 205 (1985). 

Blackmun, Harry A. "Section 1983 and 
Federal Protection of Individual Rights- 
Will the Statute Remain Alive or Fade 
Away?" 60 New York University Law Review 1 

Bork, Robert H. "Law, Morality, and 
Thomas More." Address to the Thomas 
More Society of America, Washington, 
D.C., Sept. 26, 1985. 

Brennan, William J., Jr. "Rededication 
Address: The American Bar Association's 
Memorial to the Magna Carta." 19 Loyola 
of Los Angeles Law Review 55 (1985). 

Cohen, George M. "Posnerian Juris- 
prudence and Economic Analysis of Law: 
The View from the Bench." 133 University 
if Pennsylvania Law Review 1117 (1985). 

Directory of Criminal justice Issues in the 
states. Criminal Justice Statistics Associa- 
ion, Washington, D.C. 

Edwards, Harry T. "Hopes and Fears 
or Alternative Dispute Resolution." 21 
Willamette Law Review 425 (1985). 

Edwards, Harry T. "Public Mispercep- 
ions Concerning the 'Politics' of Judging: 
dispelling Some Myths About the D.C. 
-ircuit." 56 University of Colorado Law Review 
19 (1985). 

Estreicher, Samuel, and John E. Sexton. 
New York University Supreme Court 
'roject." 59 New York University Law Review 
77-1929 (1985). 

A Framework for Studying the Controversy 
oncerning the Federal Courts and Federalism. 
advisory Commission on Intergovern- 
lental Relations, Washington, D.C. 
opies available from the Commission at 
111 20th St., N.W., Washington, DC 

Geiselman, R. Edward, and Ronald P. 
sher. "Interviewing Victims and Wit- 
?sses of Crime." National Institute of 
istice. Research m Brief. December 1985. 
Gibney, Mark. "The Role of the Judi- 
ary in Alien Admissions "VIII Boston Col- 
;e international & Comparative Law Review 
H (1985). 

Goldberg, Arthur J. "Stanley Mosk: A 
^deralist for the 1980's." 12 Hastings Con- 

The Center recently published the 
1985 Catalog of Audiovisual Media Pro- 
grams, a substantial revision of the 
former Educational Media Catalog. This 
new edition lists audiocassettes, 
videocassettes, instructional soft- 
ware, and films available for loan to 
federal judicial personnel from the 
media library of the Center's Infor- 
mation Services. 

The items are grouped by subject 
matter and include recordings of 
Center seminars and workshops, 
specially produced Center media pro- 
grams, and programs obtained from 
commercial sources and other 
government agencies. Recordings of 
presentations at seminars are 
included on a selective basis in an 
effort to avoid needless duplication 
and to make the catalog easier to use. 
The programs were selected for 
inclusion based on the level of past 

usage and their topicality. 

The introduction to the catalog 
further describes the organization of 
the materials listed and includes 
directions for requesting items and a 
reproducible request form (which 
should be retained for recurring use). 
Copies of the catalog have been dis- 
tributed to a large segment of the 
federal judiciary, including judges, 
magistrates, clerks, circuit and dis- 
trict executives, chief probation and 
pretrial services officers, offices of 
senior staff attorneys and federal 
public and community defenders, and 
court training coordinators. Other 
federal judicial personnel may obtain 
copies by writing to Information Ser- 
vices, 1520 H Street, N.W., Washing- 
ton, DC 20005. Enclose a 
self-addressed, gummed mailing 
label, preferably franked (6 oz.), but 
do not send an envelope. ■ 

1986 Circuit Judicial Conferences 

First Circuit 
Second Circuit 
Third Circuit 
Fourth Circuit 
Fifth Circuit 
Sixth Circuit 
Seventh Circuit 
Eighth Circuit 
Ninth Circuit 
Tenth Circuit 
Eleventh Circuit 
D.C. Circuit 
Federal Circuit 

Oct. 14-16 
Sept. 4-7 
Sept. 28-30 
June 26-28 
May 11-14 
May 14-18 
May 18-20 
July 22-28 
Aug. 17-21 
July 9-12 
May 11-14 
May 18-20 
Apr. 23 

Dixville Notch, N.H. 

Bolton Landing, N.Y. 

Princeton, N.J. 

White Sulphur Springs, W. Va. 

Houston, Tex. 

Memphis, Tenn. 

Milwaukee, Wis. 

Minneapolis, Minn. 

Sun Valley, Idaho 

Boulder, Colo. 

Atlanta, Ga. 

Williamsburg, Va. 

Washington, D.C. 

stilutional Law Quarterly 395 (1985). 

Kaufman, Herbert. Time, Chance, and 
Organizations: Natural Selection in a Perilous 
Environment. Chatham House, 1985. 

Leflar, Robert A. One Life in the Law. 
Arkansas Press, 1985. 

7 985 Grand and Petit juror Service in United 
States District Courts. Administrative Office 
of the U.S. Courts, 1985. 

Parness, Jeffrey A. "Groundless Plead- 
ings and Certifying Attorneys in the Fed- 
eral Courts." 1985 Utah Law Review 325. 

Petersilia, Joan, and Susan Turner. 

Guideline-Based justice: The Implications for 
Racial Minorities. Rand Publication Series 

Ranney, James T. "The Exclusionary 
Rule— The Illusion vs. the Reality." 46 
Montana Law Review 289 (1985). 

Schwartz, Bernard. The Unpublished 
Opinions of the Warren Court. Oxford, 1985. 

Shafferman, Joel. "Privacy Plight of 
Public Employees." 13 Hofstra Law Review 
189 (1985). 

See SOURCE, page 9 


KASTENMEIER, from page 6 

which I think in another time might 
have been unnecessary. 

Are there many others in the 
House and Senate who are really 
interested in judicial administra- 
tion? Are there many interested law- 
yers or former judges in Congress 

Strangely enough, I think there are 
fewer than one would expect. We do 
have a number of members of the 
House and the Senate who are either 
former judges or have been practic- 
ing lawyers in the past. One would 
naturally assume that these people 
would be keenly interested on a con- 
tinuing basis in the judiciary. In my 
opinion, their lack of special interest 
in judicial administration is because 
they have other duties. If they are on 
a committee that deals directly with 
court reform, they deal with it, but if 
they are on another committee their 
other duties sometimes just take 
them in other directions. There are a 
number of them who clearly are 
interested in these questions. You 
can reawaken a sense of concern 
about the judiciary in them, but the 
brunt of work is left to those of us 
who are directly challenged with the 
responsibility, as Howell Heflin and 
Strom Thurmond and many others 
are in the Senate. 

The importance of their other 
work in the Senate and the House 
tends to override other matters? 

Yes, I think so. If 1 take a bill to the 
floor, let's say such as increasing judi- 
cial survivors' benefits, it will get 
general support. Now it means that 
there is latent, strong support for 
judges, even though individual 
members will complain from time to 
time about judges for various rea- 
sons, as they do in any policy-making 
institution. Yet the support is there, 
and I think the residual good will and 
support for the judiciary generally, 
the federal judiciary certainly, is still 
notable in the House and Senate. 
Sometimes we may differ as a matter 
of policy whether the mandatory 
jurisdiction of the Supreme Court 
ought to be eliminated or not, or 

whether diversity ought to be 
changed, but basically I think there is 
support for the judiciary. I have no 
hesitation about moving legislation 
forward based on any fear that the 
House might disapprove because 
judges might be deemed "unpopular." 
That is not the case. 

Among the bills passed by the 
House in December was the Rules 
Enabling Act of 1985 (H.R. 3550), 
affecting the way in which federal 
rules become effective. What partic- 
ular concerns of yours does this mea- 
sure address? 

With respect to the Rules Enabling 
Act, this too, I think, responds to my 
own philosophy. Again, we want to 
be helpful with respect to the Judicial 

my colleagues struggling with the 
rules in the past decade. I would hope 
that the Congress would again play a 
very passive role in connection with 
the rules in terms of approval. I do 
not want various questions on the 
rules of evidence or anything else to 
be politicized. There may be a couple 
of instances one could imagine that 
could lead to special legislation, but 
overall we would be very happy for 
these rules not to be altered by the 

We do, however, at the same time 
believe that the rule-making process 
should not supersede acts of Con- 
gress, and that's recognized in the 
proposed legislation. Although there 
may have been some earlier question 

"I . . . would always put elimination of the Supreme 
Court's mandatory jurisdiction and abolishment of diver- 
sity jurisdiction on my list of things I would like to see 

Conference and the standing com- 
mittees that handle the rules. We 
were mindful of a number of sugges- 
tions and criticisms of the way things 
have been conducted in the past. We 
did think that openness, although 
resisted, I think, at the outset by 
some members of the judiciary, is 
desirable, and there is an essential 
element of openness that we have put 
into the Act. We've also tried to 
respond to concerns about the role 
the Supreme Court would play. We 
decided as a matter of policy that the 
Court ought to continue to review 
rule changes, even though it may not 
play a highly active role in the rules. 
The Supreme Court's rule-making 
role is very important to the state 
supreme courts in discharging similar 
responsibility. If the federal rules are 
to be given a high degree of credibility 
and followed as a model by the states, 
then the Supreme Court accom- 
plishes by its rather passive review 
role an important function when all 
else is considered. 

Again, the bill does not contem- 
plate, hopefully, much of a role for 
the Congress. I remember some of 

about it, the judicial Conference has 
acceded to that point of view, and I 
think that was important. 

Other bills are coming down. Of 
course, there is the proposed Intercir- 
cuit Tribunal, which we will want to 
look at. We just passed the judicial 
Improvements Act, which contained 
a number of housekeeping changes, 
including judicial survivors'annuities 
reform. If one looks at the content of 
the judicial Improvements Act from a 
judiciary perspective, it would have 
to be considered as a very positive 
amalgam of different provisions. 

I, of course, would always put elim- 
ination of the Supreme Court's man- 
datory jurisdiction and abolishment 
of diversity jurisdiction on my list of 
things I would like to see achieved. 
There is some question whether the 
Senate cares to move those two mat- 
ters forward. 1 would not merely pass 
them unless a showing is made that 
there is some interest on the part of 
the Senate in those matters. 

Do political changes in Congress 
and the resultant changes in commit- 

See KASTENMEIER, page 10 



Frank J. Magill, U.S. Circuit Judge, 

8th Cir., Jan. 21 
Ronald R. Lagueux, U.S. District 

Judge, D.R.I., Jan. 21 
Lawrence P. Zatkoff, U.S. District 

Judge, E.D. Mich., Jan. 21 
Danny J. Boggs, U.S. Circuit Judge, 

6th Cir., Jan. 29 

A. Fitzwater, U.S. District 

Judge, N.D. Tex., Jan. 29 
A^alter J. Gex III, U.S. District Judge, 

S.D. Miss., Jan. 29 
rhomas J. McAvoy, U.S. District 

Judge, N.D.N.Y., Jan. 29 
efferson B. Sessions III, U.S. District 

Judge, S.D. Ala., Jan. 29 
Robert J. Bryan, U.S. District Judge, 

W.D. Wash., Feb. 3 
/liriam G. Cedarbaum, U.S. District 

Judge, S.D.N.Y., Feb. 3 
'aymond J. Dearie, U.S. District 

Judge, E.D.N.Y., Feb. 3 
)avid R. Hansen, U.S. District Judge, 
N.D. Iowa, Feb. 3 



tephen V. Wilson, U.S. District 

Judge, CD. Cal., Dec. 6 
dward R. Korman, U.S. District 

Judge, E.D.N. v., Dec. 16 
atrick A. Conmy, U.S. District 

Judge, D.N.D., Dec. 17 
imes L. Buckley, U.S. Circuit Judge, 

D.C. Cir., Dec. 19 
rankX. Altimari, U.S. Circuit Judge, 

2d Cir., Dec. 23 
;lenn L. Archer, Jr., U.S. Circuit 

Judge, Fed. Cir., Dec. 23 
ynn N. Hughes, U.S. District Judge, 

S.D. Tex., Dec. 23 
eorge H. Revercomb, U.S. District 

Judge, D.D.C., Dec. 24 
avid R. Thompson, U.S. Circuit 

Judge, 9th Cir., Dec. 24 
lorris S. Arnold, U.S. District Judge, 

WD. Ark., Dec. 30 
uross Fitzpatrick, U.S. District 

Judge, M.D. Ca., Dec. 31 
mes L. Ryan, U.S. Circuit Judge, 6th 

Cir., Jan. 2 
obert L. Miller, U.S. District Judge, 

N.D. Ind., Jan. 10 
J. Spencer Letts, U.S. District Judge 

CD. Cal., Jan. 13 
Alan B. Johnson, U.S. District Judge, 

D. Wyo., Jan. 17 

Senior Status 

Paul Benson, U.S. District Judge, 

D.N.D., Dec. 31 
Morgan Ford, Judge, U.S. Court of 

International Trade, Dec. 31 


Anthony T. Augelli, U.S. District 
Judge, D.N.J. , Oct. 22 

Roger Robb, U.S. Circuit Judge, D.C. 
Cir., Dec. 19 

Positions Available 

Clerk, U.S. Bankruptcy Court 
for the Middle District of Florida. 

Salary to $52,262. To apply, send 
resume by Apr. 15 to Alexander L. 
Paskay, Chief Judge, U.S. Bank- 
ruptcy Court, P.O. Box 1000, 
Tampa, FL 33601-1000. 

Senior Supervisory Attorney, 
U.S. Court of Appeals for the Fifth 
Circuit. Salary to $44,430. Qualifi- 
cations: three years of high quality 
legal experience with knowledge of 
federal practice and procedure; 
management experience or demon- 
strated interpersonal skills pre- 
ferred; graduation in the upper 
third of law school class; law review 
or equivalent legal research, writ- 
ing, and editing experience. To 
apply, send resume by Mar. 15 to 
Steven Felsenthal, Director, Staff 
Attorneys' Office, 600 Camp St., 
Rm. 116, New Orleans, LA 70130. 


SOURCE, from page 7 

Simon, Larry G. "The Authority of the 
Framers of the Constitution: Can Origi- 
nalist Interpretation Be Justified?" 73 
Cnlifornin Law Review 1480 (1985). 

Stern, Barry J. "Presumptive Sentenc- 
ing in Alaska." AInskn Law Review, 
December 1985, 227-70. 

Weninger, Robert A. "Unjustified 
Sentence Disparity: A Case Study of the 
Leveling Effect of Parole." 36 Syracuse Law 
Review 715 (1985). 

■ 9 


Immigration Talk 
Begins Ninth Circuit 
Lecture Program 

Professor William Hing recently 
spoke on immigration issues at a 
meeting of Ninth Circuit appellate 
judges who were in San Francisco for 
court week. Also in attendance were 
several appellate staff attorneys and 
law clerks. 

Professor Hing, of the Golden Gate 
University Law School, is a visiting 
professor at Stanford Law School for 
the 1985-1986 academic year. His 
was the first in a series of occasional 
lectures planned by the Ninth Cir- 
cuit's education committee and spon- 
sored and financed by the Center as 
part of its local training program. The 
law schools have been asked for sug- 

See TALK, page 10 



The Chief lustice 
of the United States 

ludge Daniel M. Friedman 

Uniteii Stales Court of Appeals 

for the Federal Circuit 

ludge Arlin M. Adams 

United States Court of Appeals 

for the Third Circuit 

Chief Judge Warren K. Urbom 

United States District Court 

District of Nebraska 

Chief Judge Howard C. Bratton 

United States District Court 

District of New Mexico 

ludge A. David Mazzone 

United States District Court 

District of Massachusetts 

ludge Martin V.B. Bostetter, |r. 

United States Bankruptcy Court 

Eastern District of Virginia 

L. Ralph Mecham, Director 

Administrative Office of the 

United States Courts 

Federal judicial Center 

A. Leo Levin, Director 

Charles W. Nihan, Deputy Director 




KASTENMEIER, from page 8 

tee chairmen make significant 
changes in what legislation is passed 
into law or defeated? For example, 
there was a push in Congress to 
bring about more "court stripping"— 
depriving the courts of their 
jurisdiction— but it seems to have 
receded. Do you have any views on 

Yes. Political changes often occur 
as winds of change. That is to say, 
changes do not necessarily mean that 
personnel — individual House 
members or Senators— have been 
replaced. The political winds of 
change are more important. So, while 
I cannot say that there have been 

changes in personnel that affect 
legislative outcomes, 1 do feel that 
during the last two or three years the 
mood has changed from one of 
attacking the jurisdiction of the 
courts, removing jurisdiction from 
the judiciary, in response to a series 
of major decisions of the Supreme 
Court. Court stripping as a political 
approach has been on the wane. I 
don't see that pressed any more, and I 
think that's a very healthy develop- 
ment. In my opinion, we have to come 
to terms with the function the judi- 
cial branch serves in society and that 
function serves this nation well. 
Whether or not I agree with every 
court decision is irrelevant. The judi- 
cial branch serves us well and I am 

very conservative when it comes to 
institutional changes, such as court 
stripping, being imposed on the judi- 
ciary by the legislative branch. ■ 

TALK, from page 9 

gestions for prospective speakers and 

These programs represent another 
means to provide judges with an 
opportunity for dialogue with others 
who are working in areas closely 
related to the work of the federal 
courts. Other circuits interested in 
developing an occasional speaker se- 
ries are invited to contact the Cen- 
ter's Division of Continuing 
Education and Training. ■ 





Vol. 18 No. 3 March 1986 

The Federal Judicial Center 
Dolley Madison House 
1520 H Street, N.W. 
Washington, DC 20005 

Official Business 

Postage and 

fees paid 

United States 








eaders Gather at Brookings Institution Forum Judges' Service on 

Commission Upheld 

Last month, following a tradition 
anted in IQ78, the Brookings Insti- 
tion brought together in Annapo- 
, Md., leaders from the three 
anches of the federal government, 
veral state chief justices, and 
embers of the academic communi- 
. Brookings' President Bruce K. 
acLaury and Senior Staff Member 
arren Cikins, along with A. Lee 
itschler. Director of Brookings' 
mter for Public Policy Education, 
signed the seminars to "give the 
rticipants the opportunity to 
plore together problems and issues 
the administration of justice on an 
ormal and off-the-record basis." 

Chief justice Burger explained in 
welcoming remarks that the meet- 
ings afforded the judiciary an oppor- 
tunity for direct communication with 
others, especially representatives of 
the legislative and executive 
branches, whose activities acutely 
affect the work of the courts. He 
expressed the hope that these infor- 
mal discussions would bring about a 
better understanding of how joint 
efforts can irfi^rove the delivery of 
justice in tl>^ourts. Also addressing 
the semia^ we_t:|,-Attorney G&peral 
Edwin j9^ese'%I, Senator Strom 

The Third Circuit Court of 
Appeals has held that voluntary ser- 
vice by Article III federal judges on 
the President's Commission on 
Organized Crime does not violate the 
separation of pov^ers doctrine. In re 
Scarfo, No. 85-5539, slip op. (3rd Cir. 
Feb. 14, 1986). 

The U.S. District Court for the 
District of New Jersey, following In re 
Scnduto, 763 F.2d 1191 (llth Cir. 
1985), held that the presence of two 
members of the federal judiciary on 
the Commission violated the Consti- 

.r^i^.xT^c ^ ^"^'°"' ^""^ therefore quashed the 

'OKINGS,p^2 ^Commission's subpoena of Scarfo. 

rSThe Third Circuit vacated thedistrict 



What is the origin of the United 
States Tax Court? 

The origin, or the need for a Tax 
Court, goes back to the Sixteenth 

bief Judge Sterrett on Tax Couri Procedures, ^ ^ 
Durt as Forum for Large and Small Cases ^ ^ 

7ms month The Third Branch went to 
Article I specialized court to interview 
ef Judge Samuel B. Sterrett of the United 
es Tax Court. 

he Judge, a native Washingtonian, 
ivedan LLB. from the University of Vir- 
n law School, and a master's degree in 
Hon from New York University Law 
}ol. He served in the United States Army 
nfter graduating from the U.S. Merchant 
rine Academy, in the U.S. Merchant 
rine. A biographical sketch notes that the 
',e sailed as a second mate on ships in both 
Atlantic and Pacific Oceans. Quite natu- 
/, his hobby is sailing, and he enjoys golf 
duck hunting. 

he Judge's career is replete with expe- 
e in tax law areas— private practice in 
■hington, D.C, and New York City; 
rnment service in the Office of the 
onal Counsel of Internal Revenue Service 
lew York City: and appointment to the 
W States Tax Court, where he has served 
nuously since 1968. He has been presi- 
nlly reappointed to two 15-year terms, 
in 1970 and again in 1985. 
'" June 1, 1985, his colleagues elected 
Chief Judge of the Tax Court. 

court's order and remanded with 
instructions to enforce the Commis- 
sion's subpoena. (The Commission is 
chaired by Judge Irving R. Kaufman 
(2nd Cir.), and former Supreme 
Court Justice Potter Stewart served 
on the Commission until his death in 
December.) Noting that the work of 
the Commission is nonjudicial and 
that the service of judges on it is 
voluntary, the court declined to fol- 
low Scnduto, stating that "attention 
should be on the judge's conduct and 
not that of those who tendered, but 
did not impose, the powers.... We 
are not prepared to say that the Con- 
stitution prohibits the service of Arti- 
cle III judges on any and all 
extrajudicial governmental commit- 
tees or commissions." 

See JUDGES, page 2 

Chief judge Sterrett 
Amendment and the enactment of 
the income tax law. The tax laws 
enacted in 1913 provided in effect 
that the government could simply 

See STERRETT, page 4 


Canadian Judicial Centre 
ABA Midyear Meeting . . 

Federal Salary 

Mechanism Modified 

by Congress p. 3 




Center Publishes New 
Staff Paper 

Court- Amuviilfd Expcrti. J st.iff 
paper by Thomas E. Willging, was 
recently published by the Center. 
The author discusses the 
mechanics of using Federal Rule of 
Evidence 70o to appoint an expert 
and to allocate payment of the 
costs. He also reports cases involv- 
ing creative, nontestimonia! use of 
experts under a combination of rule 
706, Federal Rule of Civil Procedure 
53 (special masters), and the inher- 
ent powers of the courts. The paper 
was prepared in response to ques- 
tions raised by judges concerning 
what they perceived as the rela- 
tively infrequent use of court- 
appointed experts. 

Copies of this report can be 
obtained by writing to Information 
Services, 1520 H St., N.W., 
Washington, DC 20005. Enclose a 
self-addressed, gummed mailing 
label, preferably franked (4 oz.). 
Please do not send an envelope. 

JUDGES, from page 1 

Scarfo contended that service on 
the Commission brands a judge as 
"pro prosecution," and relied on the 
Siiuiuto conclusion that Commission 
activity was detrimental to the notion 
of judicial impartiality. The Third 
Circuit's opinit)n says that while the 
"appearance of bias" argument 
advanced by Scarfo is "troubling," it 
"does not persuade us that the Con- 
stitution has been violated. Rather, 
we conclude that it may be addressed 
in specific cases by a motion for re- 
cusal." * 


Published monthly by the Administrative 
Office of the U.S. Courts and the Federal Judi- 
cial Center. Inquiries or changes of address 
should be directed to 1520 H Street, N.W., 
Washington, DC 20005 


Alice L. O'Donnell, Director, Division of Intcr- 
ludicial Affairs and Information Services, Fed- 
eral judicial Center Peter C, McCabe, Assis- 
tant Director, Program Management, Admin- 
■•Iralive Office of the US. Courts. 

BROOKINGS, from page 1 

Thurmond, Chairman of the Senate 
ludiciary Committee, and Congress- 
man William ). Hughes, Chairman of 
the House Judiciary Subcommittee 
on Crime, who brought a message 
from Congressman Peter Rodino, Jr., 
Chairman of the House Judiciary 

The Chief Justice expressed his 
personal appreciation for the atten- 
dance of his counterparts from the 
states, Chief Justice Edward F. Hen- 
nessey of the Supreme Judicial Court 
of Massachusetts, this year's Chair- 
man of the Conference of Chief Jus- 
tices; Chief Justice Robert F. Stephens 
of the Supreme Court of Kentucky; 
and Chief Judge Robert C. Murphy of 
the Court of Appeals of Maryland. 

Chief Judge Murphy introduced 
Governor Harry Hughes of the host 
state, whodiscussed the impact of the 
1786 Annapolis convention on the 
drafting of the U.S. Constitution. 

Among the subjects that received 
special attention during the three- 
day meeting were the sentencing and 
bail provisions of the Comprehensive 
Crime Control Act of 1984, habeas 
corpus, the federalization of state 

1985 Financial Disclosure 
Statements Due in May 

All judicial officers and judicial 
employees in Grade 16 and above 
are reminded that they are required 
to file financial disclosure state- 
ments for calendar year 1985 by 
May 15. This includes those 
employees who may have worked 
up to 60 days during 1985. 

Annual filings are required by the 
Ethics in Government Act, 28 
U.S.C. app. §§ 301-309 fl982). 

tort law, mass tort litigation, judicial 
selection, and the proposed intercir- 
cuit panel to assist the Supreme 
Court of the United States with its 
growing workload. Professor Daniel 
J. Meador of the University of Virgi- 
nia Law School restated his endorse- 
ment of the intercircuit panel, and 
Attorney General Meese has since 
added his endorsement. 

Three chief judges from the federal 
courts were in attendance. Chief 
Judges Charles Clark, John C. God- 
bold, and Donald P. Lay. The Federal 
Judicial Center and the Administra- 
tive Office were represented by their 
directors, A. Leo Levin and L. Ralph 
Mecham. ' 

Canadian Judicial Centre Project Underway 

The Canadian judiciary is currently 
engaged in setting up the Canadian 
Judicial Centre. The project was 
announced by Chief Justice Brian 
Dickson of the Supreme Court of 
Canada and Federal Minister of Jus- 
tice John Crosbie on Nov. 14, 1985. 
Presently in the conceptual stage, the 
project is directed by Justice William 
A. Stevenson of Edmonton, Alberta, 
who is assisted by a research advisor, 
Brian Grainger. Justice Stevenson is 
charged with undertaking a study of 
needs and resources "with a view to 
the establishment of permanent edu- 
cational programs available to all 
judges and courts in Canada." 

Justice Stevenson, a judge for ten 
years (the last five on the Alberta 
Court of Appeal), is a past president 
t)f the Canadian Institute for the 

Administration of Justice and a 
former professor of law. He will can- 
vass and consult with individuals and 
organizations including the Canadian 
Judicial Council, the Chief Judges of 
the Provincial Courts, the Canadian 
Judges' Conference, the Association 
of Provincial Court Judges, the Cana- 
dian Institute for the Administration 
of Justice, the Canadian Institute for 
Advanced Legal Studies, and faculties 
of law and departments of govern- 
ment in Canadian colleges and 

Justice Stephenson and Mr. Grain- 
ger recently spent a day at the Federal 
Judicial Center and met with Director 
A. Leo Levin and other Center staff 
to learn how the FJC carries out its 
continuing education and training 
programs. " 

ABA's Midyear 
Meeting Held 

Members of the ABA's House of 
Delegates debated and acted upon 
several issues of relevance to the fed- 
eral courts at their recent midyear 
meeting. Some are listed below. 

Tort law. The ABA's 441-member 
house unanimously rejected an 
American Medical Association pro- 
posal that asked that the ABA join its 
efforts to bring about changes in the 
tort law system. The AMA member- 
ship contend that malpractice judg- 
ments against doctors are excessively 
high; that the cost of malpractice 
insurance is excessively high; and 
that the combination is discouraging 
doctors from fully carrying out their 
responsibilities to their profession. 
The ABA housedidacknowledge that 
the two professions share some com- 
mon problems related to the tort law 
area and directed that entities of the 
ABA immediately set in motion stud- 
ies that could bring about changes. As 
a start, it was suggested that ongoing 
consultations be held with represen- 
tatives of health care groups, the 
insurance industry, state and federal 
governmental agencies, and all other 
appropriate individuals and organiza- 
tions, "with the goal of seeking a 
broader consensus of how more 
equitably to compensate injured per- 
sons." In turning down the AMA 
proposal, however, the ABA did not 
:lose the door to cooperative efforts 
ater, presumably after reports come 
n from the ABA studies. 

The ABA House of Delegates 
jpproved a comprehensive report 
apposing a federal role in the area of 
Tiedical malpractice and opposed the 
?5tablishment of limitations on 
iwards that may be realized by suc- 
ressful litigants in malpractice cases. 
Intercircuit panel. The ABA house 
)oth refused to endorse and voted to 
)ppose legislation that would estab- 
ish, for an experimental period of 
ime, an intercircuit panel to assist 
he Supreme Court with its growing 
aseload. The panel that would be 
'Stablished under the pending con- 

gressional bill would screen certain 
cases brought by parties hoping for 
review by the Supreme Court of the 
United States, mainly those cases 
involving issues where the circuit 
courts of appeals have handed down 
split decisions. In a rare house 
appearance by a Supreme Court jus- 
tice to address a specific issue, justice 
Rehnquist asked for ABA support to 
cure what he pointed out— as the 
Chief justice has in the past— is a 
serious problem for the Court. 

Arbitration. The ABA house 
approved a resolution to urge Con- 
gress to amend title 9 of the United 
States Code. This change would facil- 
itate appeals to federal courts of 
appeals from orders of a federal dis- 
trict court that either refused a stay 
of litigation pending arbitration or 
denied an application to compel 

Privatization of prisons and jails. 
This issue raised much controversy 
and concern, and following debate it 
was urged that jurisdictions that are 
considering privatization not proceed 
until the complex constitutional, 
statutory, and contractual issues are 
developed with great care and study. 
Bankruptcy. There was no dissent 
to a resolution that approved support 
of pending legislation to bring about 
priority of federal claims in nonbank- 
ruptcy administration. This would 
bring about conformity with the fed- 
eral priorities under the Bankruptcy 

Grand jury subpoenas. Over- 
whelming approval came for a resolu- 
tion to curb the government's use of 
grand jury subpoenas directed to 
attorneys whose clients are the sub- 
ject of investigation by that grand 
jury. The Criminal justice Section 
spoke to this issue, insisting that 
prior judicial approval should be man- 
datory where the prosecutor is seek- 
ing to compel an attorney-witness to 
provide evidence concerning a client, 
thereby removing the attorney-client 

Copies of resolutions on these mat- 
ters are available by contacting Alice 
O'Donnell at the Federal judicial 
Center. ■ 


Congress Modifies 
Federal Pay Mechanism 

When the President next delivers 
recommendations on judicial salaries 
to Congress, those recommendations 
will become effective after 30 days 
unless disapproved within that 
period by a joint resolution of Con- 
gress. Such resolution is subject to 
presidential veto, and if vetoed would 
have no legal effect unless the veto 
were overridden by a two-thirds 
majority of both the Senate and the 

Congress modified its procedures 
for acting on federal salary revision 
late last year as part of the continuing 
appropriations resolution enacted at 
the end of the first session. Under 
prior law, a negative vote by either 
house was sufficient to veto the Pres- 
See SALARIES, page 10 

Karen M. Knab New 
D.C. Circuit Executive 

Karen M. Knab has assumed the 
position of Circuit Executive for the 
District of Columbia Circuit. 

Ms. Knab holds a bachelor's degree 
from St. Mary's College, University 
of Notre Dame, and a law degree 
from the University of Chicago. Her 
background includes work as Deputy 
Director of State Courts for the state 
of Wisconsin, Director of the Family 
Division of the Superior Court of the 
District of Columbia, and Director of 
Administration for the firm of 
Pepper, Hamilton & Scheetz. She has 
also served as Staff Attorney for the 
American judicature Society and as 
Director of Corporate and Sales Tax 
of the Illinois Department of 

Ms. Knab has lectured for the 
National Center for State Courts, the 
D.C. Bar Continuing Legal Education 
Program, the Illinois Bar Continuing 
Legal Education Program, and Anti- 
och College's Women and the Law 
series. She has published articles on 
various aspects of court management 
and court administration. ■ 



STERRETT, from page 1 

audit a taxpayer's return, make a 
determination that additional tax was 
due, and then proceed to collect. Until 
1924, the taxpayer had no right to 
have his or her tax liability judicially 
determined prior to the time he or 
she paid the tax. The only remedy 
was to pay the tax and then sue for 

the Board of Tax Appeals— soon to 
become the Tax Court of the United 
States, and now the United States 
Tax Court— has never changed. It 
has never had responsibility for 
investigative work; it has never had 
the responsibility for giving advisory 
opinions. It does not regulate. For 
over 60 years now, it has taken facts 
and applied the Internal Revenue 
Code and other pertinent authority 
to those facts. It has for over 60 years 
performed a purely judicial function. 

Chili judge SterreH 

refund in either a U.S. district court 
or the U.S. Court of Claims. The self- 
assessment system was sort of a 
novel experiment, and it was recog- 
nized that to be effective, it could not 
appear to be arbitrary and capricious. 
So it quickly became obvious that the 
taxpayer ought to have an opportun- 
ity to litigate his or her liability first, 
and that led to the birth of the Board 
of Tax Appeals in 1924. The members 
were presidentially appointed for a 
term of years. They were considered 
to be experts in the field, and their 
exclusive jurisdiction was 
statutory — namely, to interpret the 
Internal Revenue Code. 

The Tax Section of the American 
Bar Association, the Treasury, and 
the congressmen and senators were 
so pleased by the performance of the 
Board of Tax Appeals that in 1926 
they altered its status so that appeals 
could no longer be taken to the dis- 
trict courts from the Board of Tax 
Appeals. The Board of Tax Appeals' 
decision was made a final one at the 
trial level. Since 1926 the basic role of 

ters on procedural matters, that is, on 
who should represent the govern- 
ment in the Tax Court. If we become 
an Article III court, does that mean 
the Department of Justice or the U.S. 
Attorney should assume the respon- 
sibility for representing the 

As I understand it, the Treasury 
Department thinks that there's too 
close a relationship between litiga- 
tion in the Tax Court and tax policy 
to let it get out of its hands. Treasury 

"We historically have had a very effective stipulation pro- 
cess which I think may be the envy of some other courts.' 

And that's not a fact that is known by 
all. Now it's true that its technical 
status has changed over the years. 
When it was founded in 1924, and 
continuing into 1926, it was an inde- 
pendent agency in the executive 
branch of the government. In 1942, 
Congress changed the name of the 
Board of Tax Appeals to the Tax 
Court of the United States and gave 
each of the individuals, who used to 
be called "member," the title of judge. 
Nonetheless, it was still an indepen- 
dent agency in the executive branch 
of government. 

Was there a subsequent change in 
the court's status? 

Yes, in 1969 the court was given 
Article I status and the power topun- 
ish for contempt, along with certain 
other trappings that one associates 
with a court, such as the power to 
enforce subpoenas. Throughout this 
history there were constant efforts 
by some people to make the court an 
Article III court. Actually, a bill 
passed the House at one time to make 
it an Article III court. This was even 
an issue back in the early 1920s when 
Secretary of the Treasury Mellon 
came up with the idea for a Board of 
Tax Appeals. In the early stages 
nobody knew exactly how well the 
Board of Tax Appeals was going to 
perform after all we'd only had :in 
income tax for less than tc-n years. 
Many proposals have come up since 
then to give the court Article III sta- 
tus. The argument sometimes len- 

ought to be able to determine what 
policy should be enacted and what 
policy the IRS ought to press in court, 
so the argument goes. The Chief 
Counsel of the IRS is the highest 
ranking government attorney who 
appears in the Tax Court, and he also 
holds the title of an Assistant General 
Counsel of the Treasury. The Gen- 
eral Counsel himself does not involve 
himself in the litigation details of the 
Chief Counsel's Office. There also 
might be a problem of what commit- 
tee on the Hill would have jurisdic- 
tion if the court became an Article III 
court. It currently comes under the 
jurisdiction of the Senate Financeand 
House Ways and Means Committees. 
Can you describe the way the Uni- 
ted States Tax Court functions 

If the IRS audits a tax return 
involving income, estate, gift, and 
certain excise taxes, and after having 
audited that return and having dis- 
cussed the issue with the taxpayer, 
l^o agreement can be reached on the 
amount of taxes due, the IRS will 
send a so-called statutory notice of 
deficiency to the taxpayer. The tax- 
payer then may elect to pay that defi- 
ciency and sue for refund in the U.S. 
District Court or the U.S. Claims 
Court, or he or she may choose to 
seek a judicial determination that he 
or she doesn't owe that amount of 
mt)ney by filing a petition in the Tax 
Court within 90 days from the date of 
the notice. That immediately stops 

? government from assessing the 
;. The government cannot collect 
til we have made a decision — 
rring the so-called jeopardy assess- 
nt situation, where the taxpayer 
ght be Fleeing thecountry or some- 
ng like that. The government files 
answer and the case is then at 

^ow are cases assigned to the 

Jnder the Internal Revenue Code 
taxpayer is entitled to have a case 
ird as close to his or her place of 
idence as is reasonably possible. 
e Tax Court sits in some 80 cities 
oughout the country, and the tax- 
er will normally choose the city 
t is closest to his or her home, 
ept in extraordinary circumstan- 
, such as the location of witnesses, 
t is where the case will be tried, 
^v, the clerk's office keeps track of 
request for place of trial in partic- 
r cities throughout the country. 
en the number of cases in the city 
:ifies it, we will schedule a 
ndar in that city. In large cities 
h as New York and Los Angeles, 
t means we will hold court almost 
e a month. 


How often do you hear cases en banc? 

We virtually never hear cases en 
banc. In disciplinary matters involv- 
ing attorneys three judges sit if the 
issue may result in sanctions. 

Can you tel! us more about the 
procedure in the Tax Court? 

Another raison d 'etre for the Tax 
Court is that the decisions be uni- 
form throughout the country— so 
that the taxpayer in Florida gets the 
same answer as the taxpayer in Cali- 
fornia. The idea was that there ought 
to be a body of uniform judicial inter- 
pretation of the Internal Revenue 

The way our procedure works is 
that the Tax Court judge receives the 
evidence, either at a trial or via a full 
stipulation of facts, and then requires 
that the parties file briefs. The judge 
will examine the evidence, review the 
briefs, research the question of law 
presented, and then prepare an opin- 
ion which will contain findings of fact 
and a discussion of the applicable law, 
concluding with his or her decision. 
Incidentally, at the trial itself we are 
bound to follow the Federal Rules of 
Evidence of the United States District 

"Settlements— God bless 'em! If we didn't have settle- 
ments we would just be down the tube." 

Dnce the cities are chosen for a 
■ticular term — fall, winter, or 
ing— the chief judge sends that list 
lund to his colleagues. Each judge 
old to expect four or five weeks of 
il in each of three terms. The judge 
1 make his or her selections and 
ward them to the chief judge, who 
1 make the final decision on who 
's where. Once a judge is assigned 
i particular calendar in a city, the 
?f judge will assign to him or her 
the cases scheduled for trial on 
t calendar, and the cases then 
ome that judge's responsibility, 
tunately, most cases are settled, 

where the case is tried, the 
■ernment will be represented by 

Chief Counsel's Office of the 
?rnal Revenue Service, and the 
payer normally will have an 

Court for the District of Columbia 
sitting without a jury. 

To ensure uniformity, the judge 
sends the proposed opinion to the 
chief judge for review. Somebody has 
to read all the opinions to make sure 
that the 19 of us are consistent. The 
chief judge reviews the case, and if he 
finds that it's inconsistent with a 
decision of ours, say, 10 years ago, he 
talks to the judge, and the judge says, 
"I think that decision 10 years ago 
was wrong." The chief judge says, 
"That's your prerogative — I'll send it 
to conference." And then maybe the 
judge's colleagues will agree with him 
or her, and we reverse ourselves. But 
we go to conference, and that's when 
collegiality becomes so important and 
when you really get into the true 
appellate procedure, because the 


author of the opinion comes in to 
defend his or her opinion in front of 
his or her colleagues. Now, just as in 
the case of an appellate court, the fel- 
low judges around the table will 
accept, almost without exception, the 
trial judge's findings of fact. The trial 
judge heard the evidence, saw the 
witnesses, and observed their demean- 
or; but other judges may then say 
that they think the trial judge did not 
apply the law correctly. It's debated, 
and the judges vote on the proposed 
opinion and can write concurring or 
dissenting opinions. It's called a 
court-reviewed case. We think it 
important to send certain cases to 
conference because it is our responsi- 
bility to be a national court, judicially 
establishing national standards for 
interpretation of tax law. We handle 
about 80 to 85 percent of the tax trial 

Chief judge Sterrett 

Particularly important cases must 
go to conference and be considered by 
the whole court, because there are 19 
judges on this court and every one of 
them is a tax professional. They con- 
sider the matter and the opinion goes 
out with the imprimatur of the full 
court. There are other reasons that 
cases go to conference. I cited the one 
where one of our colleagues wants to 
overrule a prior case. Another 
instance would be where on a given 
issue a U.S. circuit court of appeals 

See STERRETT, page 6 

6 ^ 




STERRETT, from page 5 

had reversed us. The next time that 
same issue comes up in this court, the 
chief judge must send it to conference 
to decide whether we will follow that 
reversal. We will always follow that 
reversal in that circuit because there is 
no need to make the losing party take 
a needless appeal. However, as a 
national court, and while certainly 
respectful of any circuit court's opin- 
ion, we do not feel required to follow 
what one circuit says when deciding a 
case in another circuit. However, if 
on reconsideration of the issue we 
find the reasoning of thecircuit court 
compelling, we are not too proud to 
reverse ourselves. 

Does this fact lead attorneys to 
practice forum shopping? 

Well, of course, the judge would be 
the last to ever know for a fact, 
because no lawyer is going to call up 
and say, "I am not going to your 
court!" I am sure it exists, but 1 doubt 
that it exists a great deal. For one 
thing, the price that you have to pay 
to go to the district court and the 
Claims Court is to pay the tax. And 
you may not have the money or want 
topay the tax. But, on the other hand, 
if you can afford it and the precedents 
in the Claims Court, district court, or 
circuit court are better for your client 
than ours... then go. I think we 
would understand why you would do 

What are the diffferences between 
regular members of the Tax Court 
and the special trial judges? 

We have on the court both "regu- 
lar" judges and special trial judges. 
The regular judges are presidentially 
appointed, subject to approval by the 
Senate Finance Committee, and then 
confirmation by the full Senate. We 
receive the same salary as U.S. dis- 
trict court judges, and we equate our- 
selves with U.S. district court judges 
in most ways. As for the special trial 
judges, they are selected by the Tax 
Court. They used to be tailed com- 
missioners. They were equated at 
one time with the commissioners of 
the Court of Claims before the status 
of that court was changed. 

Can you expand on the function of 
the special trial judges? 

The advantage in having special 
trial judges, and in our being able to 
pick them, is that we can form a pool 
of adjudicators, all with a tax back- 
ground, but with various specialties. 
It permits the chief judge, in assign- 
ing cases, to tailor the special trial 
judges' particular expertise to the 
particular issue at hand. They do 
almost all of the small tax case work, 
but also are assigned to hear many 
big, long trials involving complex fac- 
tual patterns. They are invaluable 
and make a substantial contribution 
to the court's work. There are 17 spe- 
cial trial judges, 19 regular judges, 
and 8 senior judges. 

It may become necessary^ but at the 
moment we are not using the special 
trial judges as magistrates are used in 
the district courts, that is, to work on 
the case at an early stage and process 
it and get it ready for a regular judge. 
We do not do that at the moment, to 
any large extent, because so many of 
our cases wouldn't lend themselves 
to that sort of procedure. 

Please explain the procedure for 
hearing small tax cases in your court. 
There was a real need in this court 
for an informal proceeding for the 
small taxpayer, because the court has 
a dual function to perform. It has the 
function of deciding the most compli- 
cated questions of tax law for the edi- 
fication of the tax bar and the 
government— cases involving mil- 
lions of people or dollars. But it also 
has the responsibility to the small 
taxpayer who does not have a great 
deal of money at issue and who can- 
not afford to hire an attorney. Con- 
gress in its wisdom set up in 1969 a 
small tax case procedure where the 
taxpayer may, if the deficiency deter- 
mined is under $10,000, elect the 
small tax case procedure — what we 
call "S cases." 

What does that mean? 
It means that the taxpayer gets a 
quick trial. In the large cities, from 
the time you file your small tax case 
petition you'll be in trial in six 
months, and you will get a decision a 
few months thereafter. In return for 

all this, there is no appeal by either 
party from the decision in a small tax 
case procedure. The S case is an infor- 
mal trial. It's less costly; there's less 

See STERRETT, page 7 



]. Daniel Mahoney, U.S. Circuit 

Judge, 2nd Cir., Feb, 7 
Con. G. Cholakis, U.S. District Judge, 

N.D.N.Y., Feb. 7 
Barbara K. Hackett, U.S. District 

Judge, E.D. Mich., Feb. 11 
Stephen F. Williams, U.S. Circuit 

Judge, D.C. Cir., Feb. 19 
Daniel A. Manion, U.S. Circuit Judge, 

7th Cir., Feb. 24 
Kenneth L. Ryskamp, U.S. District 

Judge, S.D. Fla., Mar. 12 


Danny J. Boggs, U.S. Circuit Judge, 

6th Cir., Mar. 3 
Frank J. Magill, U.S. Circuit Judge, 

8th Cir., Mar. 3 
Miriam G. Cedarbaum, U.S. District 

Judge, S.D.N. Y., Mar. 3 
David R. Hansen, U.S. District Judge, 

N.D. Iowa, Mar. 3 
Ronald R. Lagueux, U.S. District 

Judge, D.R.I. , Mar. 3 
Thomas J. McAvoy, U.S. District 

Judge, N.D.N.Y., Mar. 3 
Lawrence P. Zatkoff, U.S. District 

Judge, E.D. Mich., Mar. 3 
Con. G. Cholakis, U.S. District Judge, 

N.D.N.Y., Mar. 14 
Raymond J. Dearie, U.S. District 

Judge, E.D.N.Y., Mar. 14 


C. Arlen Beam, Chief Judge, D. Neb. 
Jan 7 


Jean S. Breitenstein, U.S. Circui 

Judge, 10th Cir., Jan. 30 
Edmund Port, U.S. District Judge 

N.D.N.Y., Mar. 2 
Latham Castle, U.S. Circuit Judge 

7th Cir., Mar. 10 
Henry J. Friendly, U.S. Circuit Judge 

2nd Cir., Mar. 11 

. 7 


STERRETT, from page 6 

applicMtion of rules of evidence where 
you represent yourself— and most 
small taxpayers do. It means the 
judge will involve himself or herself 
in the trial and ask questions to make 
sure all the facts that will help the 
taxpayer are brought out. it evens 
the scales between the taxpayer and 
the Chief Counsel's attorney. This is 
a very, very important part of our 
task in terms of making the self- 
assessment system work, because 
this is the level where most taxpayers 
are. It's their perception of the sys- 
tem that will determine the ultimate 
success of the system. We concen- 
trate on trying to make the proceed- 
ing fair in reality as well as in 
appearance. The special trial judges 
handle almost all the S cases. 

Can a nonlawyer represent a tax- 
payer in the Tax Court? 

Yes. We have a proceeding where- 
by nonlawyers can take an exam and 
if they pass that exam they can 
represent taxpayers. The exam is 
intended to test the applicant's 
knowledge of court procedures as 
well as of substantive tax law. The 
court is on record as opposing a pro- 
posal in Congress that enrolled 
agents and CPAs be automatically 
allowed to practice in the Tax Court. 
That would amount to something 
iike over 200,000 additional people 
?ntitled to practice before the court. 
lAfe strongly oppose it. In the first 
olace, enrolled agents are people that 
the IRS has certified as being quali- 
ied to represent a taxpayer in the 
idministrative proceeding. Now it 
Joesn't seem right to us that we 
ihould have to take, as an individual 
luthorized to represent a taxpayer, 
somebody that one side has said 
cnows the law. That means the IRS 
ould pick who's going to represent a 
axpayer, not only before it, but 
)efore the court, and we don't think 
hat's right. Further, if accountants 
vere allowed to represent taxpayers 
n the small tax case procedure it 
vould cause the judge instinctively to 
eel he or she should involve himself 

or herself less in the proceeding. In 
other words, "He's got his represen- 
tative. I should be more impartial in 
terms of questions I ask." The judge 
won't feel the obligation to involve 
himself or herself, to make sure the 
taxpayer is well represented. We do 
let the return preparer sit at the table 
and advise the taxpayer, and he or she 
could be a witness, so it's not as if the 
taxpayer is naked, so to speak. The 
program has been working well. We 
can cite law review articles by Profes- 
sor Whitford and others which have 
said, "This is one small-claims court 
that works, and if it ain't broke, don't 
fix it." As an Article I court — a pecu- 
liar creature of Congress — we think 
if Congress is going to hold us ac- 
countable then they ought to give us 
the authority and responsibility to 
say who's going to represent taxpay- 
ers in our court. 

Can you generalize on the filings 
that come to your court? How many 
involve individuals and how many 
involve business? 

It's about 90 percent personal, 10 
percent business. Recently, I found 
out something interesting. As of June 
20, 1924, there were 1,507 civil tax 
cases pending in the U.S. district 
courts. In 1985, in U.S. district 
courts, there were 2,935 cases. In 
short, it's doubled in the U.S. district 
courts, but the Tax Court has gone 
from zero to about 73,000 cases, so I 
am sure the district courts are grate- 
ful for our existence. 

A large part of our docket for a 
while was the so-called tax protester. 
The "tax protesters," as we use the 
phrase, are those who say, "The 
income tax law is unconstitutional." 

See STERRETT, page 8 

New Edition of Court Automation Plan 

The 1985 update of the Fivc-Yenr 
Plan for Automntiou in ilic United Stales 
Courts emphasizes the Center's plans 
for completion of major systems 
under development and their 
transfer to the Administrative 
Office. The plan describes the Cen- 
ter's integrated case management 
system approach to electronic dock- 
eting systems and provides a general 
description of the new appellate 
information management system 
(New AIMS), the bankruptcy auto- 
mation system (BANCAP), the full- 
docketing civil case management 
system (CIVIL), and the probation 
information management system 

The report also summarizes the 
status of the various automated proj- 
ects for which the Administrative 
Office is responsible. These range 
from developing, installing, and sup- 
porting a variety of software projects 
to procuring and installing decentral- 
ized computer systems for use by the 
courts, to defining future office auto- 
mation requirements for chambers 
and support offices, toobtaining tele- 

phone and telecommunications net- 
works required by the courts. The 
report outlines projected expansion 
plans through fiscal year 1990. 

As described in the plan, during the 
past year, the Center established sev- 
eral training programs required to 
meet court needs for assistance and 
instruction in automation prepared- 
ness and systems management for 
this generation of major automated 
systems. In addition to the intensive 
training program developed for 
court-selected system administra- 
tors, an analogous management-level 
course was created to address the 
particular needs of senior court 

The Administrative Office pro- 
vides training in the use of opera- 
tional computer applications. 
Current policies relating to word- 
processing training and personal- 
computer training are also spelled out 
in the plan. 

Looking beyond the completion of 
current major development efforts, 
the plan makes several projections 
about future automated support. ■ 




STERRETT, from page 7 

"I am a natural being.""! am not sub- 
ject to taxation." "It violates the 
Northwest Ordinance." That one 
sent us all to the history books. 
What's the Northwest Ordinance got 

Positions Available 

Clerk, U.S. Court of Appeals for 
the Eleventh Circuit, Atlanta, 
Georgia. Salary to $dl,296. Ten 
vears' administrative experience 
required (law practice may be sub- 
stituted for experience; college edu- 
cation and degrees in public, 
business, or judicial administration 
and in law may be partially substi- 
tuted). Send resume by .Apr. 23 to 
Norman E. Zoller, Circuit Execu- 
tive, U.S. Court of Appeals for the 
Eleventh Circuit, 50 Spring Street, 
S.W., Room 41o, Atlanta, GA 
30303, 404/331-5724 or FTS/242- 

Chief Probation Officer, U.S. 
District Court for the District of 
Columbia, Washington, D.C. Com- 
mencing Aug. 11. Salary to 
$61,29e>. Requirements mclude 
four years of experience in a help- 
ing profession, with one year of 
experience as a supervisor; an 
advanced degree in an appropriate 
social science is preferred. Send 
resume by May 15 to LeeAnn 
Flynn, Administrative Assistant to 
the Chief ludge, U.S. District 
Court, 3rd and Constitution 
Avenue, N.W., Washington, DC 

Clerk, U.S. District Court for 
the Northern District of Alabama. 

Salary to $68,700. Ten years' admin- 
istrative experience required (law 
practice may be substituted for 
experience; college education and 
degrees in public, business, or judi- 
cial administration and in law may 
be partially substituted.) Send 
resume by Apr. 30 to Hon. Sam C. 
Pointer, Jr., Chief judge, U.S. Dis- 
trict Court, Federal Courthouse, 
Birmmgham, Alabama 35203. 


to do with income tax law? Or they 
say, "We're off the gold standard." All 
these things are clearly frivolous. In 
those cases. Congress has authorized 
us to impose a penalty up to $5,000, 
and we have been doing it. Those 
cases are dropping off. 

The other big area of our 
caseload— about 30 percent— is the 
so-called tax shelter case. These cases 
have been a management problem, 
because a shelter might involve 
investors spread throughout the 
country. Congress has given us some 
additional tools to manage those, and 
while we see some further increase, 
we think we see the light at the end of 
the tunnel. In short, we are con- 
cerned, but we think that we are 
going to be able to manage it. 
How about settlements? 
Settlements— God bless 'em! If we 
didn't have settlements we would 
just be down the tube. 
Is it a pretty high rate? 
Oh, 80 or 85 percent. 
That's high. How do you encour- 
age it, or do you? 

We send out letters reminding par- 
ties that under our rules they are 
required to get together and stipulate 
facts. We historically have had a very 
effective stipulation process, which 1 
think may be the envy of some other 
courts. We require the parties to get 
together and stipulate to documents, 
although they can always reserve the 
objection of relevancy. By requiring 
the parties to get together for the 
stipulation process, you're much 
more likely to get settlements, 
because you force the parties to talk 
to each other, go back and forth, and 
you force them to look in a mirror and 
analyze, with at least some degree of 
dispassion, the real merits of their 

A number of our judges send out a 
standing pretrial order which directs 
the parties to get together and directs 
them to report to the court before 

Can you explain how the AT&T 
case got in the Tax Court? 

I'll use it as an example of an expe- 
I ditcd (.ase. A taxpayer has a preroga- 

tive of filing a motion for assignment 
of a judge. The taxpayer also can filea 
motion for expedited treatment. 

The AT&T case is about a distribu- 
tion of 39 cents per share of Pacific 
Telesis stock— whether that amount 
is taxable as a dividend. It affects the 
three million AT&T shareholders. So 
both AT&T and the Internal 
Revenue Service want a judicial 
determination with respect to the 
taxable status of the dividend as soon 
as possible. It was agreed that the 
parties would file a joint motion 
requesting that the case be assigned 
to a judge who would give it expe- 
dited treatment. 

As I said, the main bulk of cases are 
assigned to a judge by reason of his or 
her being assigned to a calendar. Out- 
side that, in order to give special 
treatment to particularly significant 
questions of law, we encourage the 
taxpayers and the government to file 
a joint motion bringing to our atten- 
tion the fact that the case is of unusu- 
al significance. It might involve, say, 
the meal money of state troopers, 
which could aggregate $10 million 
throughout the country, and thou- 
sands of state troopers waiting to 
find out whether their lunch money 
is taxable. The court ought to give 
them a quick answer because if they 
are wrong, interest is accumulating 
on the taxes. So the parties file this 
motion. 1, as chief judge, will assign 
the case to a judge who promises me 
he or she will put this case at the top 
of the pile. We want to get an answer 
well within a year; no more than a 
year from the time the motion is filed, 
if the parties have proceeded 
promptly to trial or to submit the case 
on stipulated facts. 

By judicial standards that is a quick 
response to a complicated legal 

Generally our goal is to have a deci- 
sion a year from the time the case is 
fully submitted — which means after 
briefing. Now in these expedited 
cases, I'm talking about well within a 
year after the motion was filed. So 

See STERRETT, page 9 


iTERRETT, from page 8 

here is a substantial difference. 
Generally speaking, we are in good 
hape in terms of being current, but 
ou are never as good as you want to 

How long has your court experi- 
lented with the issuance of sum- 
lary bench decisions? 

Congress, as a part of its effort to 
elp us handle our backlog, gave us 
\e authority to render bench opin- 
ns. Prior to that, as a court of 
•cord, we were required to make 
ritten findings of fact and write 
minions. Congress in 1Q82 autho- 
zed us to enter bench opinions. 
Some cases lend themselves to a 
?nch opinion, cases where issues are 
mple and factual, and maybe depend 
Jon the credibility of witnesses, or 
iluation cases— how much a paint- 
g is worth, for example. You have 

listen to the experts and work it 
It toward X dollars. Some of the 
otester cases and the cases involv- 
g an alleged church we can dispose 

by bench opinions. It saves a great 

Mandatory Jurisdiction 
Changes Proposed 

Representative Robert W. Kas- 
tenmeier (D-Wis.), chairman of the 
Subcommittee on Courts, Civil Lib- 
erties, and the Administration of 
Justice, recently introduced legisla- 
tion (H.R. 4149) that would sub- 
stantially eliminate the mandatory 
jurisdiction of the Supreme Court 
of the United States. 

In introducing the measure on 
Feb. 6, the Congressman noted that 
the legislation had passed the 
House during the 97th and 98th 
Congresses and enjoys strong sup- 
port from the judicial and executive 
branches of government. Quoting 
from a letter of June 17, 1982, writ- 
ten to him by all nine of the Justices 
of the Supreme Court, he pointed 
out that they expressed their"com- 
pletc support for the proposals." 

The bill is favored by the Reagan 
administration, the Judicial Confer- 
ence of the United States, and the 
ABA as well as all of the Justices. 

deal of time. In fiscal year 1985, we 
had 340 bench opinions. It takes a 
little time for the judge, frankly, to 
feel comfortable making findings of 
fact and conclusions of law on the 
record extemporaneously. My col- 
leagues are getting used to it, and its 
use will be increased. It's a very valu- 
able tool, and we are grateful to Con- 
gress. We are constantly trying to 
figure out ways to move the 73,000 

One of the ongoing discussions in 
the legal profession involves a very 
controversial subject: specialized 

I don't feel qualified to say whether 
or not there ought to be other special- 
ized courts. I'd like to make a point 
which I don't think is sufficiently 
understood. While we are labeled a 
specialized court, federal tax conse- 
quences attach to property rights 
determined under local law, common 
law, the rules of the state statutes. 
Taxes are so pervasive and attach to 
so many different sorts of transac- 
tions that we are constantly deciding 
matters of state law and matters of 
common law. We have to go back and 
find out what the word "charitable" 
meant in the old English common law 
to interpret section 501(c)(3). People 
do not fully realize that while the bot- 
tom line is interpretation of the Tax 
Code, to get to that bottom line we 
have to be broadly based. We have to 
interpret contracts, divorce settle- 
ments, maintenance, child support 
payments, mineral rights, inheri- 
tance laws, and all that. All that is a 
matter of state law, and we have to 
get into those questions. 

Generally how do you feel about 
our tax system in this country? 

Our tax system needs improve- 
ment, 1 don't think there is any ques- 
tion about that. I think there is a lot of 
dissatisfaction out there. 1 think 
there is a perception among some 
that the system isn't fair, and when 
you are relying on a voluntary self- 
assessment system, the perception of 
it is very, very important. My col- 
leagues and I believe that it's very 
important that we make sure that 
everybody who appears in court sees 

that he or she is getting his or her fair 
day in court. This is true particularly 
with respect to small taypayers, 
because it may well be the only 
appearance in court— other than a 
traffic court — that he or she will ever 
make. How the taxpayer is treated 
may very well shape his or her entire 
attitude toward the judicial system 
and, indeed, toward the government 

Our system must be fairly good, 
because we've had several countries 
come to us and try to examine our tax 
court system. We've got people from 
Thailand coming over in the near 
future. They are going to send a cou- 
ple of judges here to see how our 
system works. The Canadians have 
already been to visit us. There have 
been others. ■ 

Product-Liability Cases in 
Federal Courts Increase 

"In the decade between 1974 and 1984, 
the number of product-liability suits in 
federal courts expanded 680 percent." 
Time Magazine, Mar. 24, 1986. 


Apr. 2-4 Workshop for Judges of 

the Fourth Circuit 
Apr. 9-11 Seminar for Bankruptcy 

Apr. 9-11 Regional Seminar for 
Federal Public and Commun- 
ity Defenders 
Apr. 13-16 Seminar for Newly 
Appointed Federal Appellate 
Apr. 21-22 Judicial Conference 
Advisory Committee on Civil 
Apr. 21-23 Sentencing Institute for 

the Ninth Circuit 
Apr. 23 judicial Conference of the 

Federal Circuit 
Apr. 29-May 2 Video Orientation 
Seminar for Newly Ap- 
pointed Magistrates 
Apr. 30-May 2 Seminar for Bank- 
ruptcy judges 
Apr. 30-May 2 juror Utilization and 
Management Workshop 

10 # 




The puhUintions listed below way he of interesf 
to The Third Branch renders. 

Burger, Warren E. "Using Arbitration 
to Achieve Justice." 40 The Arbitration jour- 
nal 3 (1985). 

Federal judicial Workload Statistics During the 
Twelve Month Period Ended September 30. 
1985. Administrative Office of the U.S. 
Courts, 1986. 

Flanders, Steven. United States Courts for 
the Second Circuit 19S5^Report of the Circuit 
Executive. 1985. 

Jails in America: An Overview of Issues. 
American Correctional Association, 

judicial Education— A Guide to State & 
National Programs. Foundation for Women 
judges, 1986. 

The Justice Hugo L. Black Centennial 
Edition. 36 Alabama Law Review No. 3 

Keating, J. Michael, Jr. Public Ends and 
Privnte Means: Accountability Among Private 
Providers of Public Social Services. National 
Institute for Dispute Resolution, 1985. 

Keith, Damon J. "Role of the Federal 
Judiciary." 32 Federal Bar News & journal 409 

Leval, Pierre N. "From the Bench- 
Westmoreland V. CBS." 12 Litigation 7 

Markey, Howard T. "The Court of 
Appeals for the Federal Circuit: Chal- 
lenge and Opportunity." 34 American Uni- 
versity Law Review 595 (1985). 

Martineau, Robert J., and Patricia A. 
Davidson. "Frivolous Appeals in the Fed- 
eral Courts; The Ways of theCircuits."34 
American University Law Review 603 (1985). 
Redmann, William V. "American 
Judges in Contemporary Society." 23 
Court Review 6 (1986). 

Rehnquist, William H. "Oral Advo- 
cacy." 27 South Texas Law Review 289 (1986). 
Sessions, William S. "Federal Civil 
Practice— Where Are We Headed?" 32 
Federal Bar News & journal All (1985). 

"The Supreme Court, 1984 Term." 99 
Harvard Law Review 1 (1985). 

"Symposium: The Burger Court and 
American Institutions." 60 Notre Dame 
Law Review No. 5 (1985). 

Trubatch, Sheldon L. "Informed judi- 
cial Decisionmaking; A Suggestion for a 
Judicial Office for Understanding Science 
and Technology." 10 Columbia journal of 
Environmental Law 255 (1985). 

Wick, William A. "Federal Rule of Civil 
Procedure 68; Proposed Amendments 
May Impose Liability for Opposing Coun- 
sel Fees." 28 For the Defense 18 (1986). 

SALARIES, from page 3 

ident's quadrennial salary recom- 
mendations. Those procedures have 
nov*/ been modified, however, in 
response to the Supreme Court's 
invalidation of the one-house veto in 
INS V. Chndlw. 

The Commission on Executive, 
Legislative, and Judicial Salaries w^ill 
continue to study and recommend to 
the President periodic revisions of 
the federal salary structure. The 
Commission made no proposals for 
specific salary adjustment to the 
President in connection with its 
review of salaries conducted in fiscal 
year 1985. However, the law autho- 
rizes a one-time Commission review 
in fiscal year 1987, after which the 
quadrennial cycle will resume in fiscal 
year 1989. The 1987 Commission will 
take office on Oct. 1, 1986, with a 
deadline of Dec. 15 to report its find- 
ings to the President, who would 
then transmit any recommendations 
for revised salary levels to Congress 
in January 1987. There has been no 
change in procedures governing 
annual cost-of-living increases. ■ 




Vol. 18 No. 4 April 1986 

The Federal Judicial Center 
Dolley Madison House 
1520 H Street, N.W. 
Washington, DC 20005 


Postage and 

fees paid 

United States 


Official Business 


rfvi. W^ 



MAY 1986 

enneth C. Crawford Retires from FJC 


Kenneth C. Crawford 
The director of the Center's Divi- 

sion of Continuing Education and 
Training since 1971, Kenneth C. 
Crawford, retired as of May 2, 1986. 

"Everyone familiar with the Cen- 
ter and its work appreciates Ken's 
key role in making the Center what 
it is today," said A. Leo Levin, direc- 
tor of the Center, in announcing Mr. 
Crawford's retirement. "The federal 
judicial system owes him an im- 
mense debt of gratitude." 

Mr. Crawford, while serving as di- 
rector of the Division of Continuing 
Education and Training, was instru- 
m,ental in developing the Center's 
l^^c training programs as well as a 
rifimbg^ of innovations, such as the 
See CRAWFORD, page 8 



ate Chief Justice Discusses Proposed' 
Jderalization of Tort Law, Other Issues .#' ^" 

^.hief Justice Edward F. Hennessey is 
ative Bostonian, and his roots are 
V in the state of Massachusetts. Both 
law and prelaw degrees are from 

Chief Justice Hennessey 

■theastern University, and he en- 
^d in the private practice of law in 
ton for 16 years. Service in the 
ted States Army interrupted the 
'e's career for four years; he was sep- 
edfrom the service in 1945 with the 

rank of captain and a Bronze Star. 

The judge's judicial career started in 
1966 on the Massachusetts Superior 
Court and includes elevation to the Su- 
preme Judicial Court of Massachusetts 
five years later. Governor Michael 
Dukakis named him chief justice of the 
state's highest court in 1976, the posi- 
tion he currently holds. 

Lecturer, writer, contributor to many 
activities of bar associations and public 
service organizations. Chief Justice 
Hennessey is this year chairman of the 
prestigious Conference of Chief Justices. 
The conference embraces a membership of 
50 judges who hold the highest judicial 
rank in their respective states. 

In the following interview Chief Jus- 
tice Hennessey speaks out on many 
topics of interest to both state and federal 
judges, and he candidly evaluates many 
developments in judicial administration 
as well as the work of the Conference of 
Chief Justices and how this organization 
has a direct impact on the courts of this 

See HENNESSEY, page 4 

fudge Jose A. Cabranes 
Elected to FJC Board 

At the March 1986 meeting of the 
Judicial Conference of the United 
States, Judge Jose A. Cabranes (D. 
Conn.) was elected to a four-year 
term on the Board of the Federal Ju- 
dicial Center. He replaces Judge 
Warren K. Urbom (D. Neb.), whose 
term expired. By statute, FJC Board 
membership is limited to one term. 

Judge Jose A. Cabranes 

Judge Cabranes began service as a 
district judge in December 1979. At 
the time of his appointment, he was 
serving as general counsel and direc- 
tor of government relations of Yale 
University, a position to which he 
had been appointed in 1975. He 
practiced in a New York City law 
firm (1967-71); was an associate pro- 
fessor of law at Rutgers University 
Law School (1971-73); and served as 
special counsel to the governor of 
Puerto Rico and administrator in the 
Office of the Commonwealth of 
Puerto Rico, Washington, D.C. 

Judge Cabranes is a graduate of 
Columbia College (A.B.), Yale Law 
School (J.D.), and Cambridge Uni- 
versity (M. Lift, in International 

Judge Cabranes has served as 

public member of the United States 

See CABRANES, page 9 


Judicial Conference Weighs Budget Cuts 

The Balanced Budget and Emer- 
gency Deficit Reduction Act of 1985 
("Gramm-Rudman-Hollings") re- 
quires that, commencing Mar. 1, 
1986, sequestrations of 4.3 percent 
be made in each appropriation cate- 
gory in the fiscal year 1986 budget, a 
total sequestration of just over 
$40,000,000 in the budget of the fed- 
eral judiciary. 

Chief Judge Charles Clark, chair- 
man of the Judicial Conference Com- 
mittee on the Budget, reported that 
in response to Gramm-Rudman- 
Hollings the Chief Justice had di- 
rected the budget committee to 
make recommendations for selective 
reductions in expenditures in lieu of 
across-the-board sequestrations. The 
committee made a series of specific 
proposals to the executive commit- 
tee of the conference, including a 
recommendation that legislation be 
sought to enable the judiciary to 
transfer funds between appropria- 
tions accounts. Since across-the- 
board cuts would have a profound 
disparate effect on personnel needed 
to support the administration of jus- 
tice in the various courts, congres- 
sional approval was sought to trans- 
fer funds from "Salaries of Judges" 
and "Expenses of Operation and 
Maintenance of the Courts" to 
"Salaries of Supporting Personnel." 
The executive committee adopted a 
schedule of reductions, which was 
reaffirmed by the Judicial Confer- 



Published monthly by the Administrative Of- 
fice of the U.S. Courts and the Federal Judicial 
Center. Inquiries or changes of address 
should be directed to 1520 H Street, N.W., 
Washington, DC 20005. 


Alice L. O'Donnell, Director, Division of 
Inter-judicial Affairs and Information Serv- 
ices, Federal Judicial Center. Peter G. 
McCabe, Assistant Director, Program Man- 
agement, Administrative Office of the U.S. 

ence. Chief Judge Clark emphasized 
that accomplishment of the fiscal 
goals set forth in the schedule of re- 
ductions cannot be accomplished 
without a sincere spirit of coopera- 
tion on the part of every judicial 
branch employee in the effort to re- 
duce expenses. Exceptions to the 
schedule for individual courts must 
be approved by a special committee 
appointed by the Chief Justice. 

Assuming that Congress confers 
authority to transfer funds between 
appropriation accounts, these cuts, 
together with other savings, will en- 
able the federal judiciary to meet the 
sequestered amount of just over 
$40,000,000 required for fiscal year 
1986, exclusive of the budgets of the 
Supreme Court, FJC, Court of Ap- 
peals for the Federal Circuit, and 
Court of International Trade, whose 
separate budgets have also been re- 
duced by the operation of Gramm- 
Rudman-Hollings . 

Should the supplemental appro- 
priation requests be denied by the 
Congress or authority to transfer 
funds between appropriation ac- 
counts not be conferred quickly, 
both furloughs of judicial branch 
employees without pay and deferral 

of civil jury trials are possibilities 
during the last quarter of the fiscal 

Included in the schedule of reduc- 
tions reluctantly accepted by the 
conference was a cut of $1,360,000 in 
the judiciary's appropriation cate- 
gory of "Court Security," relating to 
building or perimeter security and 
equipment. The reduction would be 
realized by deferring the allocation 
of 60 additional court security offi- 
cers authorized for fiscal year 1986; 
restricting the acquisition, installa- 
tion, and maintenance of security 
equipment; and eliminating some 
court security officer positions. Chief 
Judge Clark also reported that the 
U.S. Marshals Service has been di- 
rected to absorb a substantial reduc- 
tion of $6,500,000 in appropriations 
available for court security in fiscal 
year 1986. Marshals Service Director 
Stanley Morris has indicated that 
this reduction will have its greatest 
adverse impact on prisoner trans- 
portation and courtroom security. 
The conference unanimously ap- 
proved a resolution expressing its 
concern about the impact of these 
cuts on court security, and author- 
ized transmission of the resolution 
to representatives of the executive 
and legislative branches. ■ 

Court Upholds Constitutionality of Circuit 
Investigatory Procedures, Limits Privilege 

A specially designated panel of 
three judges, appointed from out- 
side the Eleventh Circuit, has af- 
firmed that circuit's application of 
investigatory procedures established 
by the Judicial Councils Reform and 
Judicial Conduct and Disability Act 
of 1980. Williams v. Mercer, Nos. 
85-2054, 85-5420, shp op. (11th Cir., 
Feb. 20, 1986). 

The opinion disposed of two con- 
solidated proceedings. One of these 
was an original enforcement pro- 
ceeding commenced in the court of 
appeals to enforce subpoenas caused 
to be issued by the Investigating 
Committee of the Judicial Council of 

the Eleventh Circuit. Present anc 
former members of the staff of Judgf 
Alcee L. Hastings (S.D. Fla.) ob 
jected to the validity and enforce 
See PANEL, page 1 

New Information on 
Circuit Conferences 

The U.S. Court of Appeals for 
the Eighth Circuit will hold its Ju- 
dicial Conference on July 23-26 in 
Minneapolis, Minn. 

The U.S. Court of Appeals for 
the Ninth Circuit has changed the 
dates of its Judicial Conference in 
Sun Valley, Idaho, from Aug. 
17-21 to Aug. 19-22. 


udicial Conference Takes Action on 
Lange of Issues Affecting Federal Courts 

Although Gramm-Rudman-Hol- 
igs and how it affects the federal 
»urts took up a major part of the 
idicial Conference's time, other 
atters also received attention, 
pon the recommendation of the 
Dmmittee on Court Administra- 
)n, the conference acted with re- 
■ect to the following issues: 
• Arbitration. The conference 
>ted to approve draft legislation 
bstantively authorizing the pres- 
t experimental court-ordered arbi- 
ition program. (The program has 
en conducted in the past through 
e process of "authorization by ap- 
opriation," i.e., through congres- 
)nal funding but without express 
itutory authorization by the House 
d Senate Judiciary Committees.) 
» Relocation allowances. The con- 
ence approved general guidelines 
verning the payment of employee 
ocation allowances. Under the 
idelines, any employee trans- 
red to a permanent position in the 
licial branch is eligible for 
Dcation allowances, provided that 
! employee agrees in writing to re- 
in in government service for one 
ir and that the chief judge of the 
:eiving court certifies that the 
nsfer is in the interest of the gov- 
iment. Noncareer employees such 
law clerks are generally ineligible 
relocation allowances upon initial 
jointment but may be reimbursed 
relocation expenses incurred as 
result of a judge's change of offi- 
duty station during the term of 
appointment, provided that the 
ployee signs the one-year service 
eement. Judicial branch person- 
, including judges taking senior 
tus, who relocate primarily for 
ir own convenience and at their 
n request may not be reimbursed 
relocation expenses (5 U.S.C. 
724(h)). Staff members required 
elocate to retain their positions 
uld be eligible for relocation as- 

sistance, provided the one-year serv- 
ice agreements are signed. 

• Debt Collection Act. The confer- 
ence approved regulations to imple- 
ment the Debt Collection Act of 
1982. The regulations establish a 
procedure for collection by means of 
salary offset of debts owed the 
United States by government em- 
ployees, including all officers and 
employees whose salaries are dis- 
bursed by the AO, except Article III 

• RICO. The conference adopted 
a resolution urging "that the Con- 
gress should seriously consider nar- 
rowing the reach of" the civil Rack- 
eteer Influenced and Corrupt 
Organizations (RICO) provisions ol 
the Organized Crime Control Act of 
1970. The resolution noted in part 
that the "extraordinary penalties 
provided by the civil RICO statute 
[treble damages and attorney fees] 
are rapidly causing what would for- 
merly have been considered routine 
breach of contract or common law 
fraud actions triable only in state 
courts, in the absence of diversity, to 
be filed in federal courts. This not 
only increases the burden on the 
federal courts, but causes friction 
with the state court system." 

• Government contract disputes. 
The conference approved legislation 
that has been introduced in both the 
Senate and House relating to gov- 
ernment contract disputes. The leg- 
islation would amend 28 U.S.C. 
§§ 1331 and 1491 to vest exclusive 
jurisdiction in these cases in the 
United States Claims Court, thus 
withdrawing jurisdiction from the 
district courts. However, the confer- 
ence directed precatory words to 
Congress recommending that the 
legislation make it clear that the 
amendment to 28 U.S.C. § 1331(b)(2) 
is intended "solely to defeat district 
court jurisdiction as to claims against 
the United States relating to the 

award of a government contract." 

Upon the recommendation of the 
Committee on the Administration of 
the Probation System, the confer- 
ence endorsed legislation pending in 
Congress to the extent that it would 
make federal restitution orders 
nondischargeable in bankruptcy. 

Upon the recommendation of the 
Committee to Implement the Crimi- 
nal Justice Act, the conference voted 
to recommend that the act be 
amended to authorize, but not re- 
quire, the delegation of a circuit 
chief judge's authority to approve 
excess fees to an active circuit judge 
selected by the chief judge; and to 
establish a holdover provision to 
permit the continued service of a 
federal public defender upon the ex- 
piration of the term of office until a 
successor is appointed or for one 
year, whichever is earlier. 

The Committee on the Adminis- 
tration of the Criminal Law made a 
recommendation with respect to leg- 
islation pending in Congress (S. 1667 
and H.R. 3378) that would extend 
the protections afforded by chapter 
19 of title 18, U.S. Code, to ad- 
vanced forms of electronic commu- 

See CONFERENCE, page 10 

Senior Judges Exempted 
from Social Security Tax 

Senior federal judges have been 
permanently exempted by Con- 
gress from Social Security taxation, 
whether or not they perform judi- 
cial duties in retirement. 

A provision of the Consolidated 
Omnibus Budget Reconciliation 
Act of 1986, signed into law on 
Apr. 7, amends sections of the So- 
cial Security Act and the Internal 
Revenue Code to provide that for 
the purposes of those sections, the 
term "wages" shall not include any 
payment of salary received by a 
senior federal judge during peri- 
ods of continued judicial service by 
designation and assignment. 

•<.;;■:;>;;;■ •■ 



1 t-.'vy-i-. 


r<<.:: ;:,:; 






HENNESSEY, from page 1 

In 1984, Congress created the 
State Justice Institute, but President 
Reagan has not made his appoint- 
ments to the Institute's board. It ap- 
pears that substantial budget cuts 
may foreclose the Institute from 
starting its work. Is the Conference 
of Chief Justices making efforts to 
see that the Institute starts 

The Conference of Chief Justices is 
doing all that it can. The present im- 
pediment is that the president has 
not made the appointments to the 
board. This is consistent with his 
present effort to rescind the fiscal 
year 1986 funding and oppose the 
fiscal year 1987 funding. We hope 
that Congress will approve funds for 
both years, and we have appeared 
in congressional hearings to that 
end. Meanwhile we — the Confer- 
ence of Chief Justices — and the Na- 
tional Center for State Courts are 
prepared to assist immediately in all 
reasonable ways to expedite the 
starting of the Institute. Of neces- 
sity, we are acting in lieu of the 
board. But the Institute cannot start 
until the board is appointed, and we 
are urgifig the president to make 
those appointments. 

Recently, in appearing before a 
congressional committee on the 
funding question, I emphasized that 
the Institute can be especially useful 
in funding studies of the critical 
problems that jointly affect federal 
and state courts: federal tort law 
proposals; habeas corpus (especially 
as it affects state prisoners); and di- 
versity jurisdiction. Presently no or- 
ganization exists that could bring 
neutral and informed insight to 
these issues, which involve billions 
of dollars. It is a doubtful economy 
indeed to hold back the $8 million 
needed for the Institute in fiscal year 
1986 and the $9 million requested for 
fiscal year 1987. 

What do you see as the greatest 

problems of the state courts today? 

Image or, in other words, 

promoting public confidence. This 

problem is pervasive in its impact. It 
affects our budgets; it certainly af- 
fects judges in terms of their ability 
and willingness to act with inde- 
pendence, free of unreasonable pub- 
lic and news media pressure. One 
example: There is constant pressure 
for more and longer incarcerations 

Massachusetts, are in that category. 
Our Massachusetts trial court of gen- 
eral jurisdiction has more than 
enough on its plate now. While the 
number of diversity cases is rela- 
tively small compared to the total 
volume of state cases, they are not 
evenly distributed, and they tend to 

"[T]he leisurely and litigious approach of some members 
of the bar is a major influence in excessive delay and 
excessive cost of litigation." 

in criminal cases. The media, and 
consequently the public, seem to be 
unable or unwilling to consider 
sentencing and the lack of adequate 
prison capacity as part of the same 
problem. This is extremely serious; 
an independent judiciary with a 
good image is essential to good ad- 
ministration of justice. It is not 
overstating the matter to say that the 
nourishment of constitutional princi- 
ples is at stake. Another unhappy 
factor as to our image is the public 
perception of excessive delay in civil 
cases. Unfortunately, in most juris- 
dictions the public perceives cor- 
rectly. But the public does not per- 
ceive that the leisurely and litigious 
approach of some members of the 
bar is a major influence in excessive 
delay and excessive cost of litigation. 

How do you feel about diversity 
jurisdiction cases not being handled 
in the federal courts? Are the state 
courts equipped to handle such 
cases in the event federal diversity 
jurisdiction is abolished? 

In all logic these cases should be 
disposed of in the state courts; only 
state law is involved. The Confer- 
ence of Chief Justices has voted that 
diversity jurisdiction in the federal 
courts should be abolished. This is 
by far the majority opinion of the 
chief justices. However, it is not 
unanimous. A majority of the chief 
justices believe their states could not 
accept the extra burden without a 
substantial expansion of their judi- 
cial resources. A study we requested 
a few years ago reflected that eight 
states, including my own. 

be cases that take more court time 
than the average state case. 

During consideration of the State 
Justice Institute Act in 1984, a Sen- 
ate report found that state court 
caseloads had increased partly as a 
result of federal government ac- 
tions, among which were recently 
enacted federal legislation (includ- 
ing the Speedy Trial Act) and U.S. 
Supreme Court decisions increasing 
procedural due process require- 
ments in a host of proceedings. Has 
this trend continued over the last 
few years, or has it abated some- 



James L. Edmondson, U.S. Circuit 
Judge, 11th Cir., Mar. 26 

Andrew J. Kleinfeld, U.S. District 
Judge, D. Alaska, Mar. 26 


J. Daniel Mahoney, U.S. Circuit 
Judge, 2d Cir., Mar. 27 

Barbara K. Hackett, U.S. District 
Judge, E.D. Mich., Mar. 27 


Walter J. Gex III, U.S. District Judge, 
S.D. Miss., Feb. 25 


D. Dortch Warriner, U.S. District 
Judge, E.D. Va., Mar. 17 

Albert Tate, Jr., U.S. Circuit Judge, 
5th Cir., Mar. 27 


Without question, state court 
seloads have increased over the 
ars, in part because of federal leg- 
ation and in part because of Su- 
eme Court decisions that changed 
e ground rules. We have no statis- 
al information as to how much of 
? increase in state court caseloads 
attributable to these reasons, and 
n sure nobody else does either. 
)r do we know whether the trend 
s continued or abated. I would 
spect that the decisions of the 
rger Court have not had the same 
pact on litigation as those of the 
irren Court, but I would be hard 
t to prove it. 

^s you know, of course, if Con- 
■ss were to enact new legislation 
such pervasive areas as products 
)ility, medical malpractice, and so 
th, it might well stimulate a flood 
litigation for some years to come 
il all the ramifications had been 
)lored. Incidentally, procedural 
e process decisions of the Su- 
me Court have probably not had 
Tiuch effect on the volume of liti- 
ion as have federal legislation 
I decisions of the Supreme Court 
he civil rights area. 
las state court concern with 
»eas corpus litigation decreased 
' over the last decade? Can the 
te-federal judicial councils be 
pful in dealing with this 

/hile state-federal judicial coun- 
in some states have helped to 
1 out some local problems be- 
en the two systems, I believe 
t the state court concern about 
eas corpus relating to state pris- 
rs has not decreased over the last 
ide, but if anything has been ex- 
bated. It is still a major irritant 
1 for the public and for state 
"t judges. The concern is for fi- 
'y consistent with the Constitu- 
1 and consistent with fairness. 
> is reflected by the fact that it 
inues to receive the attention of 
Conference of Chief Justices, as 
enced by conference resolutions 
pted in 1983, 1984, and 1985. 
/ Congress, not state-federal ju- 

dicial councils, can effectively deal 
with the problem. Why Congress 
does not act is a mystery to me. 

Have the chief justices taken up 
problems related to capital cases at 
their meetings? 

To my knowledge, the Conference 
of Chief Justices has not taken up 
problems related to capital cases at 

Chief Justice Hennessey 

its meetings, except as capital cases 
are prime producers of habeas cor- 
pus petitions and except for a pro- 
gram on proportionality review of 
death sentences at its midwinter 
meeting in Houston several years 

In the federal system there are 
specialized courts to speed up the 
processing of cases: the U.S. Claims 
Court, the Court of International 
Trade, the Temporary Emergency 
Court of Appeals. Do you have per- 
sonal convictions on the use of spe- 
cialized courts on the state level? 

There is no general agreement as 
to the value of specialized courts 
versus courts with general jurisdic- 
tion. We have some specialized 
courts in Massachusetts, such as the 
Housing Court, that work well. A 
couple of years ago. New Jersey es- 
tablished a new tax court to take 
over matters previously handled by 
the Division of Tax Appeals — an 
administrative agency that had be- 
come increasingly backlogged. It is 
interesting that this was done at the 

same time New Jersey was 
eliminating other limited jurisdiction 
courts such as the Juvenile and Do- 
mestic Relations Courts and the 
County District Courts. A lot de- 
pends, I think, on the local situation 
and where the problems are. As 
soon as you establish a single trial 
court of general jurisdiction, people 
start looking for ways to specialize 
again. The federal courts are a good 
example, with the resort to magis- 
trates and bankruptcy judges to free 
up the time of Article III district 
court judges. Specialized courts are 
introduced in any judicial system at 
the cost of flexibility that permits the 
interchange of personnel where and 
as needed. 

The Conference of Chief Justices 
is urging that should an intercircuit 
panel be created, ail state cases be 
excepted from submission to the 
panel, thus limiting intercircuit 
panel cases to those that involve 
conflicts among the federal circuits. 
Why is the conference concerned 
about having the state cases thus 
handled, since it has not voiced ob- 
jections to having them in the dis- 
trict courts? 

Our policy position is based on 
the historic fact that only the Su- 
preme Court of the United States 
can review by direct appeal or certio- 
rari decisions of the highest courts of 
the states. We do not think it appro- 
priate to alter that relationship in the 
manner proposed by the intercircuit 
tribunal. The House Judiciary Com- 
mittee has agreed with us on this 
point, and we hope the Senate will 
go along. Presumably, the principal 
reason for the tribunal — as 
illustrated by its name and 
composition — is to give greater uni- 
formity to the national law through 
resolution of intercircuit conflicts 
that the Supreme Court would like 
to see resolved but does not have 
time to consider. The tribunal would 
be composed of revolving panels of 
judges from the federal circuits, 
judges who would not otherwise 
have jurisdiction over state deci- 
See HENNESSEY, page 6 



HENNESSEY, from page 5 

sions. We have no objection to the 
panel deciding any cases that come 
to it from the federal courts, even if 
a state question is involved. But our 
federal system makes the Supreme 
Court the only court with direct ju- 
risdiction to review the highest 
courts of the states, and we want to 
keep it that way. Federal district 
courts, it follows, do not directly re- 
view state decisions, and the Con- 
ference of Chief Justices does object 
to the fact that federal collateral re- 
view by habeas corpus is sometimes 
extended beyond constitutional re- 
quirements, and beyond the dictates 
of fairness and good sense. 

Senator Thurmond has intro- 
duced legislation on the attorneys' 
fees issue that evolved from 
Pulliam V. Allen, which held that ju- 
dicial officers are not immune from 
attorneys'" fees awards. The Judicial 
Conference of the United States has 
endorsed the efforts of the Confer- 
ence of Chief Justices to eliminate 



The Chief Justice 

of the United States 

Judge Daniel M. Friedman 

United States Court of Appeals 

for the Federal Circuit 

Judge Arlin M. Adams 

United States Court of Appeals 

for the Third Circuit 

Chief Judge Howard C. Bratton 

United States District Court 

District of New Mexico 

Judge Jose A. Cabranes 

United States District Court 

District of Connecticut 

Judge A. David Mazzone 

United States District Court 

District of Massachusetts 

Judge Martin V. B. Bostelter, Jr. 

United States Bankruptcy Court 

Eastern District of Virj^inia 

L. Ralph Mecham, Director 

Administrative Office of the 

United States Courts 

Federal judicial Center 

A. Leo Levin, Director 

Charles W. Nihan, Deputy Director 

what they see as a potential ineq- 
uity to judges. Would you com- 
ment, please? 

Support from the Judicial Confer- 
ence on the critical issue of judicial 
immunity is a very significant and 
welcome development in state- 
federal judicial relations and demon- 
strates the importance of the work 
being done by the Subcommittee on 
Federal-State Relations of the Court 
Administration Committee of the Ju- 
dicial Conference. This subcommit- 
tee, as you know, was appointed by 
Chief Justice Burger in 1982 and was 
the first unit of the Judicial Confer- 
ence to have state judges in its mem- 
bership. Thus, when the Conference 
of Chief Justices passed a resolution 
urging the Judicial Conference to 
support legislation protecting state 
judges against attorneys' fees 
awards, the issue was referred to the 
Subcommittee on Federal-State Rela- 
tions for the initial study and recom- 
mendation. You recall, of course, 
that the Supreme Court based its 
opinion in Pulliam on statutory con- 
struction, and said it was for Con- 
gress, not the Court, to decide the 
extent to which state judges should 
be free from attorneys' fees awards 
under 42 U.S.C. § 1988. In its re- 
sponse, the subcommittee recom- 
mended an amendment to section 
1988 that would bar fee awards 
against a judge "who would be im- 
mune from actions for damages 
arising out of the same act or omis- 
sion about which complaint is 
made." This recommendation was 
approved by the Court Administra- 
tion Committee and the Judicial 
Conference. It is the basis for the 
legislation introduced at the request 
of the Judicial Conference by Sena- 
tors Thurmond and Hatch, and will, 
if enacted, restore the doctrine of ju- 
dicial immunity to its pre-Pulliam 
state. The Conference of Chief Jus- 
tices is, of course, delighted to have 
this very important support. It is in- 
valuable to us in our work with the 
Congress. 1 believe that the threat of 
Pulliam judgments is as substantial a 

threat to judicial independence as 
we have seen in our time. It is not 
the monetary risk alone that 
matters — that can be dealt with to 
some extent by insurance and by in- 
demnification statutes — it is the 
threat of judgment itself. Judges 
simply should not have to look over 
their shoulders at the prospect of 
See HENNESSEY, page 7 


Apr. 29-May 2 Video Orientation 
Seminar for Newly Appointed 
Apr. 30-May 2 Seminar for Bank- 
ruptcy Judges 

Apr. 30-May 2 Juror Utilization 
and Management Workshop 

May 1-3 Judicial Conference Ad 
Hoc Committee on American 
Inns of Court 

May 5-8 Video Orientation Semi- 
nar for Newly Appointed Dis- 
trict Judges 

May 11-14 Eleventh Circuit Judicial 

May 11-14 Fifth Circuit Judicial 

May 13-15 Regional Seminar for 
Probation Pretrial Officers 

May 14-16 Seminar for Training 
Coordinators of the Eighth 

May 14-18 Sixth Circuit Judicial 

May 18-20 D.C. Circuit Judicial 

May 18-20 Seventh Circuit Judicial 

May 22-23 Seminar for Appellate 
Conference Attorneys 

May 26-28 Judicial Conference Ad- 
visory Committee on Bank- 
ruptcy Rules 

May 27-28 Judicial Conference 
Subcommittee on Judicial 

May 29 Judicial Conference Ad 
Hoc Advisory Committee on 
the Administrative Office 

[ENNESSEY, from page 6 

(ersonal liability arising out of their 
Lidicial decisions. The principal op- 
•onents of the remedial legislation 
re civil rights organizations. The 
Tovision for attorneys' fees in civil 
ights cases is a good one; it encour- 
ges aggressive enforcement of civil 
ights against unconstitutional ae- 
ons of government officials. But as 
) Pulliam, the civil rights groups are 
'rong. They express no concern for 
Te principle of judicial immunity 
id thus promote one value at the 
(pense of an equal or greater value: 
idicial independence. 
While help with the Pulliam prob- 
m is perhaps the most dramatic re- 
lit of work to date by the Subcom- 
ittee on Federal-State Relations, it 
by no means the only one. There 
so have been important develop- 
ents in other areas, including law- 
?r discipline, the certification of 
ate law questions, and the federal 
lies of practice and procedure, 
hich serve as the de facto rules for 
any state court systems. Other is- 
es of common concern are under 
nsideration, and we look forward 
a cooperative approach on many 
ore. There are five federal and four 
ate judges on the subcommittee, 
ith Judge S. Hugh Dillin of the 
uthern District of Indiana as chair- 
an. State judges on the panel have 
liformly praised the fine spirit of 
Uegiality that has characterized its 
)rk, as well as the many practical 
mlts. We think it will play an in- 
?asingly important role in improv- 
5 relations between state and fed- 
al judiciaries and in promoting 
tional solutions to common 

rhe September 1985 proceedings 
the Judicial Conference of the 
S. read "Rules of practice and ev- 
snce adopted in the federal sys- 
n are of significant import for 
ite court systems because of the 
te use of federal rules as models, 
order to enhance both federal 
d state judicial interests, the 
ief Justice agreed to the commit- 

tee's recommendation that a repre- 
sentative of the Conference of Chief 
Justices be named to the Standing 
Committee on Rules of Practice and 
Procedure and each of its advisory 
committees, except the Advisory 
Committee on Bankruptcy Rules." 
Have state court judges been ap- 
pointed to these advisory commit- 
tees, and, if they have, are they 
finding this helpful? 

As I said, this is another impor- 
tant development resulting from the 
work of the Judicial Conference's 
Subcommittee on Federal-State Rela- 
tions. We are pleased that the Chief 
Justice has agreed to this recommen- 
dation of the subcommittee, as ap- 
proved by the Court Administration 
Committee, and that he already has 
appointed state judges to two of the 


necessity that reasonable discretion 
in sentencing be still left to the 
judge. This is essential; every case 
and every offender must be treated 
individually. There must also be ap- 
pellate or peer review, at the behest 
of either government or defendant, 
if the judge moves outside the 
guidelines. Guidelines support even- 
handedness in criminal dispositions; 
we need this badly. I think judges 
who oppose all forms of presump- 
tive sentencing and guidelines are 
shortsighted. Public and media pres- 
sure is for more and longer incarcer- 
ations. Without guidelines and pre- 
sumptive sentencing, the danger is 
that mandatory sentencing legisla- 
tion will proliferate. 1 can't say any- 
thing good about mandatory 

"I think judges who oppose all forms of presumptive 
sentencing and guidelines are shortsighted." 

four advisory committees involved. 
Experience to date has been too lim- 
ited to make judgments, but we are 
confident that this type of coopera- 
tion will be useful and that it will 
prove beneficial to the federal sys- 
tem as well as the state systems. 

Eight or more states have some 
form of sentencing guidelines, and 
the U.S. Sentencing Commission is 
at work formulating federal 
guidelines. In your experience, are 
state court judges generally favora- 
bly disposed toward sentencing 
guidelines? Do you believe such 
guidelines answer a public percep- 
tion that more uniformity and less 
judicial discretion is needed in the 
criminal justice area? 

My perception is that, among 
state judges, views are mixed as to 
sentencing guidelines. I personally 
support the concept of sentencing 
according to weighted criteria, under 
guidelines that have been estab- 
lished according to experience. I 
have also endorsed in my own state 
a presumptive sentencing structure 
within which guidelines can work. 
My support is conditioned on the 

Is the Conference of Chief Jus- 
tices an effective organization for 
the exchange of experiences among 
the state court systems and for the 
formulation of policy on matters of 
concern to them? 

The answer here, of course, is a 
definite yes. I mention here the 
wide-ranging scope of the programs 
at our annual and midyear meetings 
as well as some of the more signifi- 
cant issues which the conference has 
developed and articulated before the 
Congress and elsewhere as the posi- 
tion of the state courts. A few of 
these are federal review of state 
court convictions; judicial immunity, 
subsequent to the decision in Pulliam 
V. Allen; the Coordinating Council 
on Lawyer Competence; federal in- 
terference in regulation of the legal 
profession; federal intervention in 
state tort law, particularly as to 
products liabihty; and the State Jus- 
tice Institute Act. Composed as the 
conference is of the heads of the ju- 
dicial branch of government in each 
of the states, it is the only organiza- 
tion that is truly in a position to for- 
See HENNESSEY, page 8 



HENNESSEY, from page 7 

mulate national policies with regard 
to matters affecting the state 

The National Center for State 
Courts was organized in 1971 — al- 
most 15 years ago — following a sug- 
gestion made by Chief Justice 
Burger at the first National Confer- 
ence on the Judiciary. You are the 
president of the National Center. 
Has it lived up to its potential? 

The National Center today is in- 
dispensable. It is the one organiza- 
tion that the Conference of Chief 
Justices and the court systems of the 
50 states could not do without. It 
provides invaluable help to the state 
court systems through its research 
into problems common to all courts, 
through its direct expert assistance 
to individual states and courts, 
through its training programs in the 
area of court management, and 
through its many clearinghouse 
services. The tangible evidence of 
this is the fact that its primary finan- 
cial support comes from voluntary 
payments by the state court 

What is the position of the Con- 
ference of Chief Justices as to pro- 
posed federal tort legislation, espe- 
cially in the area of products 

The conference is emphatically op- 
posed. Tort law is for the states to 
develop. The proposed federal legis- 
lation would preempt the massive 
body of state statutory and common 
law and impose a federal statute. 
This is an unprecedented extension 
of the reach of the commerce clause. 

The impact of federal legislation in 
this area would be to get rid of a sys- 
tem of tort law that has taken the 
states decades to develop and sub- 
stitute a new statutory scheme that 
must be interpreted, defined, and 
applied. It would take a long, long 
while for any uniformity to arise by 
dint of cross-precedent on a case-by- 
case basis in most states. 

If we have the federal statute, our 
confident prediction is that we will 

have a legal quagmire for many, 
many years to come. It will be an 
unholy mess if Congress throws a 
whole new quick-fix statute at the 

If the case can be made that sub- 
stantial tort reform is necessary at 
this time — by reason of the impact 
on industry and on the medical 
profession — it should come in the 
states. The states can do it with the 
help of the American Law Institute 
and the Uniform Law Commission- 
ers, and only in that way are we go- 
ing to get fair adjustment of the tort 
law of the country. ■ 


The publications listed below may be of interest 
to readers. Only those preceded by a checkmark are 
available from the Center. When ordering copies, 
please refer to the document's author and title or 
other description. Requests should be in writing, 
accompanied by a self-addressed, gummed mailing 
label, preferably franked (but do not send an enve- 
lope), and addressed to Federal Judicial Center, In- 
formation Services, 1520 H Street, N.W., Wash- 
ington, DC 20005. 

Baker, Thomas E. "The Ambiguous In- 
dependent and Adequate State Ground 
in Criminal Cases: Federalism Along a 
Mobius Strip." 19 Georgia Law Review 799 

"Critical Issues in Tort Law Reform: A 
Search for Principles." Conference Spon- 
sored by the Program in Civil Liability, 
Yale Law School. XIV Journal of Legal 
Studies 459-629 (1985). 

Kastenmeier, Robert W., and Michael 
]. Remington. "The Semiconductor Chip 
Protection Act of 1984: A Swamp or Firm 
Ground?" 70 Minnesota Law Review 417 

Lambros, Thomas D. "The Alterna- 
tives Movement: Rekindling America's 
Creative Spirit." 1 Ohio State Journal on 
Dispute Resolution 3 (1985). 

Marshall, Thurgood. "Remarks on the 
Death Penalty Made at the Judicial Con- 
ference of the Second Circuit." 86 Colum- 
bia Law Review 1 (1986). 

Meador, Daniel J. "American Courts 
in the Bicentennial Decade and Beyond." 
55 Mississippi Law Journal 1 (1985). 

j^ Rehnquist, William H. "The 
Changing Role of the Supreme Court." 

Address at Florida State University, Feb. 
6, 1986. 

Sofaer, Abraham D. "The Political Of- 
fense Exception and Terrorism." 24 The 
Forum no. 2, at 1 (1986). 

Steinglass, Stephen H. "Wrongful 
Death Actions and Section 1983." 60 
Indiana Law Journal 559 (1984-85). 

Wallace, Clifford J. "Before State and 
Federal Courts Clash." 24 Judges' Journal 
36 (Fall 1985). 

Webster, William H. "Sophisticated 
Surveillance — Intolerable Intrusion or 
Prudent Protection?" 63 Washington Uni- 
versity Law Quarterly 351 (1985). 

CRAWFORD, from page 1 

four-day regional video seminars for 
newly appointed judges. Mr. Craw- 
ford has agreed to continue to make 
his services available to the Center 
on a contract basis. Director Levin 

Mr. Crawford came to the Center 
after a distinguished career in the 
United States Army, rising to the 
rank of colonel, and including a tour 
as commandant of the Judge Advo- 
cate General's School in Charlottes- 
ville, Va. He retired from military 
service on June 1, 1970, and spent 
one year as associate director of the 
Southwestern Legal Foundation in 
Dallas, Tex., before coming to the 
Center. His service in the govern- 
ment totals more than 40 years. 

He earned a master of arts degree 
from George Washington University 
and a doctor of jurisprudence degree 
from the University of Virginia. In 
1970, he was awarded an honorary 
doctor of laws degree by Illinois 
College, the institution from which 
he also received his undergraduate 
degree. Mr. Crawford is also a grad- 
uate of the United States Army War 
College, the United States Army 
General Staff and Command Col- 
lege, and the Management Program 
for Executives at the University of 

He is the author of several law- 
related publications and has taught 
law at universities and colleges in 
the United States and overseas. He 
has also lectured throughout the 
world. • 

■ 9 


'^arole Comm'n Begins 
ypecial Curfew Program 

The U.S. Parole Commission is 
nplementing an experimental spe- 
al curfew parole program. The pro- 
ram advances the parole release 
ates for certain prisoners on the 
)ndition that, once released, they 
■main in their places of residence 
jring a specified period of time 
ich night. Such a condition will 
rve as a substitute for community 
?atment center residence for a pe- 
)d of up to 60 days for those pris- 
lers accepted into the program, 
le program is designed for prison- 
5 who would qualify for commu- 
ty treatment center residence but 
io have acceptable release plans 
d do not require a center's sup- 
rt services. 

Prisoners meeting the criteria for 
acement in the program will re- 
ive a parole certificate that con- 
ns the special condition that, dur- 
; a period as long as the first 60 
ys of parole, the parolee will re- 
iin at his place of residence be- 
een the hours of 9:00 p.m. and 
)0 a.m. each night unless given 
vance permission to leave by the 
Dbation officer. Further, the pa- 
ee must maintain a telephone 
thout a call-forwarding device at 
i place of residence for this 

rhe special curfew parole program 
U provide a significant savings to 
? Bureau of Prisons, a savings ne- 
■sitated by current budgetary con- 
aints and deficit reduction legisla- 
n. The program is a joint effort of 
■ Parole Commission, the Bureau 
Prisons, and the United States 
)baHon Service. ■ 

BRANES, from page 1 

legation to the Belgrade Meeting 
the Conference on Security and 
operation in Europe (1977-78) 
1 as consultant to the Secretary of 
te of the United States (1978). He 
ilso a member of the American 
V Institute and the Council on 
eign Relations. ■ 

Judge William W. Wilkins, Jr., Chairman of 
Sentencmg Commission, Discusses Goals 

The Center Advisory Committee on 
Education Concerning 1984 Crime Leg- 
islation, appointed by the Chief Justice 
and chaired by Judge A. David Mazzone 
of the District of Massachusetts, met re- 
cently with the members of the United 
States Sentencing Commission. The 
meeting produced a suggestion that The 
Third Branch carry periodic reports on 
commission activities in order to keep 
federal judges and supporting personnel 
informed about the commission's work. 
This is the first article in that series. 

District Judge William W. Wilkins, 
Jr., the commission chairman, stated 





recently that, as a prosecutor for six 
years and now a district judge for 
five years, he had once been some- 
what "skeptical . . . about the idea of 
federal sentencing guidelines." But 
his analysis of national federal 
sentencing data convinced him "of 
the great need for improvement in 
the area of sentencing." It is a con- 
viction, he said "that many judges 
have long shared." 

Judge Wilkins discussed the com- 
mission and its work at the Brook- 
ings Institution's Seminar on the 
Administration of Justice, held in 
March in Annapolis. 

When defendants with similar 
characteristics, who committed the 
same crime, "receive dramatically 
different sentences due primarily to 
a single factor— which judge rapped 
the gavel ... we should not be sur- 
prised by the widespread perception 
that sentencing is often purely the 
luck of the draw." 

He stressed that "we judges owe 
it to those we serve, including those 
we sentence, to better satisfy the ba- 
sic requirements of justice: certainty, 
fairness, and, to a much greater ex- 
tent than has been the practice. 

equality of treatment of similar de- 
fendants who commit similar 
crimes. Our goal must be justice not 
only for the defendant, but for the 
victim of crime, and for society." 

When similar defendants who 
committed similar crimes are incar- 
cerated in the same facility, they 
"may at some point compare notes 
on our judicial system. It is not 
whether they like those who put 
them behind bars that concerns 
me — it is whether they can respect 
the fairness of a judicial system 
which produces such inexplicable 

Judge Wilkins recalled Justice 
Frankfurter's admonition that judi- 
cial authority rests ultimately on 
"public confidence in its moral sanc- 
tion." "Unwarranted sentencing dis- 
parity," Judge Wilkins said, "under- 
mines public confidence in our 
system. Unwarranted disparity 
breeds disrespect." 

Although the present system may 
have worked well "in a less compli- 
cated age," Congress created the 
Sentencing Commission because the 
system "falls short now with more 
than 550 district judges throughout 
our nation addressing the complexi- 
ties of sentencing on an individual 
basis. In order to ensure fairness 
and consistency," he said, "sen- 
tencing discretion must be better 

The commission's first public 
hearing was se^ for Apr. 15 in Wash- 
ington. The hearing was scheduled 
to provide the commission various 
perspectives on its task of ranking 
the seriousness of federal crimes. 
The witness list included representa- 
tives from the American Civil 
Liberties Union, the Washington Le- 
gal Foundation, and the Association 
of the Bar of the City of New 
York. ■ 





PANEL, from page 2 

ment of the subpoenas, which 
sought the staff members' appear- 
ance and the production of certain 
documents and records. 

In the other proceeding. Judge 
Hastings and two of the subpoenaed 
staff appealed from a district court 
judgment that dismissed their action 
seeking injunctive, declaratory, and 
other relief against the subpoenas. 

The court of appeals rejected the 
argument that the Constitution's im- 
peachment provisions require that 
the House of Representatives itself 
perform all preliminary investigatory 
functions in deciding whether to im- 
peach. Rather, the investigatory 
powers that the act assigned to the 
committee, including subpoena 

power, are ancillary to the adminis- 
tration of the courts. Further, the in- 
vestigatory procedures established 
by the Judicial Councils Reform and 
Judicial Conduct and Disability Act 
of 1980 do not unconstitutionally in- 
trude upon the independence of sit- 
ting Article III judges, the court 

It also held that although a quali- 
fied privilege exists between judges 
and staff in the performance of their 
judicial duties, it may be overcome 
absent a showing that the requested 
documents would reveal communi- 
cations concerning official judicial 
business, and in light of the investi- 
gatory committee's needs and the 
general nature of the judge's 
confidentiality interest. ■ 

CONFERENCE, from page 3 

nications. The conference concurred 
in the committee's recommendation 
that in the event of enactment of this 
legislation, the legislative history 
make clear that judges would be 
permitted to authorize magistrates 
to entertain applications and issue 
orders approving the installation 
and use of pen registers and 
tracking devices. 

The Committee on the Operation 
of the Jury System recommended an 
updated and shortened model grand 
jury charge, and the conference ap- 
proved. Copies of the new model 
grand jury charge are being trans- 
mitted to all chief district court 
judges. ■ 





Vol. 18 No. 5 May 1986 

The Federal Judicial Center 
Dolley Madison House 
1520 H Street, N.W. 
Washington, DC 20005 

Official Business 

Postage and 

fees paid 

United States 







JUNE 1986 

bicentennial Commission to Participate in 
Philadelphia and Maryland Celebrations 

The Commission on the Bicenten- 200th anniversary of the Annapolis 
ial of the U.S. Constitution will join Convention, and will hold a two-day 
1 major programs scheduled in me^|i^g in Annapolis on Sept. 
hiladelphia and Maryland in con- sg^3, 4986, in conjunction with the 
ection with the observance of i^ MaK^f?d celebration. 
30th anniversary of the signi«^f ^l^e .Annapolis Convention 
\e United States ConsHtnHni^^^^ \\:)^ronsii^ of a gathering of 12 dele- 

eajS^e^ from five states in September 
^86. The action taken by those dele- 
gates led to a resolution calling for a 
national meeting to discuss amend- 
ments to the Articles of Confedera- 
tion. A national meeting was then 
called by the Continental Congress 
for May of 1787, and led to the writ- 
ing of the United States Constitu- 
tion. The United States Constitution 
is the oldest written instrument of 
national government in continuous 
use in the world. 

Legislation is pending in Congress 
that would make Sept. 17, 1987, a 
one-time national holiday. Another 
pending bill would extend the work 
of the Bicentennial Commission 
through 1991. ■ 

\e United States Constitutio'^f 
Because of the special significance 
f the bicentennial to Philadelphia, 
here the Constitution was signed 
n Sept. 17, 1787, the commission 
ill join Philadelphia's efforts to fo- 
is national attention on the Consti- 
ition. Two major exhibits, "The 
reat Fabric of America" and "Mira- 
e at Philadelphia," will open there 
1 Sept. 17, 1986. The "Miracle at 
liladelphia" exhibit wiirbe the 
rgest show of objects from the pe- 
od of the Constitution's signing 
er assembled. Philadelphia's year- 
ng program of activities, called 
Ve the People— 200," will culmi- 
ite Sept. 17, 1987. 
The commission will also parhci- 
ite in Maryland's celebration of the 

enate Passes Bankruptcy, Annuities Bills 

TU„ £„11 • - _ I 11 • ^ _ 

The following bills in Congress are 
interest to the judiciary. 

• Bankruptcy bill. Legislation to 
ovide additional bankruptcy 
dges (S. 1923) was considered in 
e Senate and passed on May 8. As 
ported by the Senate Judiciary 
)mmittee (S. Rep. 99-269), the bill 
rluded 34 of the 48 new positions 
:ommended by the Judicial Con- 
-ence. The bill was amended on 
? Senate floor to provide a total of 
additional judgeships, including 
of the Conference's recommenda- 
ns and one additional position for 
? Western District of North 
rolina. No action has yet been 
leduled on either of the House 
Is on bankruptcy judgeships (H.R. 
is and H.R. 4140). 

During Senate consideration of the 
bankruptcy judgeship bill, an 
amendment was adopted that would 
make permanent the pilot U.S. 
trustee program, under the Depart- 
ment of Justice, for the administra- 
tion of bankruptcy estates. The 
amendment essentially incorporates 
the provisions of S. 1961, which was 
the subject of hearings on Mar. 25. 
One important change is a provision 
that would permit individual judicial 
districts to opt out of the U.S. 
trustee program. In districts 
exercising this option, estates would 
be administered under a system of 
court-appointed officers established 
by the Judicial Conference. Hearings 
were held on Mar. 20 on companion 
House bills (H.R. 2660 and H.R. 
See LEGISLATION, page 9 

Sixth Circuit Chief 
Recalls History, Wants 
More Experimentation 

The Honorable Pierce Lively, chief 
judge of the U.S. Court of Appeals for 
the Sixth Circuit since 1983, was born 
in Louisville, Ky., and received his A.B. 
degree from Centre College of Kentucky 
at Maysville. Following service in the 
U.S. Navy during World War II, the 
judge earned an LL.B. at the University 
of Virginia. He practiced law in 
Danville, Ky., from 1949 until ap- 

Chief Judge Lively 

pointed to the Sixth Circuit in 1972. A 
member of the Judicial Conference of the 
United States, Judge Lively is currently 
chairman of the Conference's Advisory 
Committee on Appellate Rules. 

Your circuit includes both north- 
ern cities such as Detroit and south- 
ern cities such as Louisville, so you 
were required to hear school deseg- 
regation cases originating in both 
parts of the country. Were there any 
unexpected developments during 
the years those cases were being 

Of course, we were not the 
leaders in the southern cases; the 
old Fifth and the Fourth Circuit im- 
plemented Brown v. Board of Educa- 
tion. We had significant cases from 
See LIVELY, page 4 



New FJC Study Available 
on Settlement Strategies 

The Center recently published 
Settlement Strategies for Federal Dis- 
trict judges, by D. Marie Provine, 
who completed this study while 
serving as a judicial fellow in the 
Center's Research Division. The 
report describes different tech- 
niques for settlement, such as judi- 
cial mediation, court-annexed arbi- 
tration, the use of special masters, 
summary jury trials, minitrials, 
and magistrate-hosted settlement 
conferences. It utilizes informahon 
and insights exchanged in the 
course of a special conference that 
brought together a group of expe- 
rienced judges who, collectively, 
offered a rich experience with 
varying types of judicial involve- 
ment in settlement. It also draws 
on literature in the field and on 
personal interviews. The report 
analyzes the settlement-oriented 
options available so as to provide a 
framework that will enable judges 
to consider settlement strategies 
they may wish to apply in their 

Dr. Provine is associate profes- 
sor of political science at the Max- 
well School of Citizenship and 
Public Affairs, Syracuse Univer- 

Copies of this report can be ob- 
tained by writing to Information 
Services', 1520 H Street, N.W., 
Washington, DC 20005. Enclose a 
self-addressed mailing label, pref- 
erably franked (8 oz.). Please do 
not send an envelope. 

New and Amended Federal Rules of Appellate 
Procedure Before Congress for Review 


Published monthly by the Administrative Of- 
fice of the U.S. Courts and the Federal Judicial 
Center. Inquiries or changes of address 
should be directed to 1520 H Street, N.W., 
Washington, DC 20005. 


Ahce L. O'Donnell, Director, Division of 
Inter-judicial Affairs and Information Serv- 
ices, Federal Judicial Center. Peter G. 
McCabe, Assistant Director, Program Man- 
agement, Administrative Office of the U.S. 

Three new Federal Rules of Ap- 
pellate Procedure, and several 
amendments to existing appellate 
rules, have been adopted by the Su- 
preme Court and on Mar. 10, 1986, 
were transmitted to Congress by the 
Chief Justice. The new rules and the 
amendments will take effect July 1, 
1986, absent congressional action. 

New rule 3.1 concerns appeals 
pursuant to 28 U.S.C. § 636(c)(3) 
from judgments entered by magis- 
trates in civil cases. New rule 5.1 
specifies the procedures for appeals 
by permission under 28 U.S.C. 
§ 636(c)(5) of district court judg- 
ments entered after an appeal pur- 



Alfred J. Lechner, Jr., U.S. District 

Judge, D.N.J., Apr. 8 
Patricia C. Fawsett, U.S. District 

Judge, M.D. Fla., Apr. 9 
Alan E. Norris, U.S. Circuit Judge, 

6th Cir., Apr. 22 
John G. Davies, U.S. District Judge, 

CD. Cal., Apr. 22 
David Hittner, U.S. District Judge, 

S.D. Tex., Apr. 22 
Douglas P. Woodlock, U.S. District 

Judge, D. Mass., Apr. 22 


Kenneth L. Ryskamp, U.S. District 
Judge, S.D. Fla., Apr. 23 

Robert J. Bryan, U.S. District Judge, 
W.D. Wash., Apr. 24 

James L. Edmondson, U.S. Circuit 
Judge, 11th Cir., Apr. 29 


Thomas J. McAvoy, U.S. District 

Judge, N.D.N.Y., Mar. 6 
David R. Hansen, U.S. District 

Judge, N.D. Iowa, Mar. 11 
Raymond J. Dearie, U.S. District 

Judge, E.D.N.Y., Mar. 21 
Miriam G. Cedarbaum, U.S. District 

Judge, S.D.N.Y., Mar. 27 

suant to 28 U.S.C. § 636(c)(4) from a 
judgment entered upon direction of 
a magistrate in a civil case. New rule 
15.1 relates to briefs and oral argu- 
ments in NLRB proceedings. 

In accordance with a request from 
the Supreme Court that gender- 
specific language be eliminated from 
the appellate rules, the Advisory 
Committee on Appellate Rules 
amended other appellate rules as 
necessary. As to these rules, the Ju- 
dicial Conference Committee on 
Rules of Practice and Procedure re- 
ported that "these proposed amend- 
ments are merely stylistic and no 
substantive change is intended." ■ 

Frank J. Magill, U.S. Circuit Judge, 

8th Cir., Apr. 1 
Barbara K. Hackett, U.S. District 

Judge, E.D. Mich., Apr. 7 
Sidney A. Fitzwater, U.S. District 

Judge, N.D. Tex., Apr. 21 


Alexander Harvey II, Chief Judge, 

D. Md., Mar. 1 
Philip Pratt, Chief Judge, E.D. 

Mich., Mar. 2 
Douglas W. Hillman, Chief Judge, 

W.D. Mich., Apr. 17 


Emory M. Sneeden, U.S. Circuit 
Judge, 4th Cir., Mar. 1 

Senior Status 

Nicholas J. Walinski, U.S. District 
Judge, N.D. Ohio, Dec. 1 

Barrington D. Parker, U.S. District 
Judge, D.D.C., Dec. 19 


Edward J. Dimock, 

Judge, S.D.N. Y 
R. Dorsey Watkins, 

Judge, D. Md., 
Richmond B. Keech, 

Judge, D.D.C., 
Lindsay Almond, 

Judge, Fed. Cir 
William E. Doyle, 

Judge, 10th Cir 

U.S. District 
., Mar. 17 
U.S. District 
Mar. 19 
U.S. District 
Apr. 13 
U.S. Circuit 
., Apr. 14 
U.S. Circuit 
,, May 2 



Witnesses Differ at Hearing on Federal Sentencing Guidelines 

r/i/s is one in a series of articles to 
p federal judges and supporting per- 
mel informed about the commission's 

iearings on offense seriousness. 
tnesses at the Sentencing Com- 
ssion's first public hearing on 
r. 15 expressed a wide diversity 
opinion on offense seriousness 
i how it might be measured, 
n opening the hearing, commis- 
n Chairman William W. Wilkins, 
asked the witnesses, "What is it 
•ut a particular crime, the way in 
ich it was committed, and its im- 
t on others that should be cen- 
tred by this commission in writ- 

he commission's statutory man- 
e directs it to consider whether 






eral specified factors have rele- 
ce to the type of sentence served 
to take them into account "only 
he extent that they do have rele- 
ce." Three of the factors specif i- 
y mentioned in the statute are 
' nature and degree of the harm 
sed by the offense," "the com- 
lity view of the gravity of the of- 
e," and "the public concern gen- 
ed by the offense." 28 U.S.C. 

t the hearing, the National Rifle 
Delation, for example, called for 
ift and certain punishment for 
ous, violent and dangerous 
ed criminals, but ... a policy of 
ency for technical, paperwork 
malum prohibitum violations of 
> regarding firearms acquisition, 
sfer, transportation and disposi- 
among the generally honest gun 
ers of this country." 
witness for the American Civil 
rties Union disagreed with the 
' that "the common street crimi- 

nal or the person who commits one 
illegal act motivated by a real or per- 
ceived need, emotional, financial or 
political, is a serious threat to society 
.... On the other hand," he said, "1 
consider economic criminals, corpo- 
rate lawlessness and official corrup- 
tion to be most threatening to our 

At the hearing. Chairman Wilkins 
noted that "the severity of the sanc- 
tion imposed should reflect the seri- 
ousness of the criminal conduct in- 
volved," and that the commission 
"must not only formulate appropri- 
ate sentences for the criminal con- 
duct involved, but . . . must also for- 

mulate sentences which are rational 
and explainable." The resulting sys- 
tem "must articulate to judges who 
impose sentences, to victims who 
suffer crimes, to defendants who re- 
ceive punishments and to the Amer- 
ican public why a particular sen- 
tence is appropriate," he said. 

The commission invites comment 
on its work from judges, supporting 
personnel, and all other interested 
persons. Correspondence may be 
mailed to the U.S. Sentencing Com- 
mission, 1331 Pennsylvania Avenue, 
N.W., Suite 1400, Washington, DC 
20004. The commission can also be 
reached at 202/662-8800. ■ 

Center Publishes Research Report on 
Punishments for Federal Crimes 

The Center has completed a re- 
search report that presents data on 
punishments imposed on persons 
convicted of federal crimes. In deter- 
mining the punishments, the study 
took account not only of the sen- 
tences imposed by judges but also of 
the operation of the parole system 
and the "good time" statute. The re- 
port was prepared to provide the U.S. 
Sentencing Commission with infor- 
mation about current practice that can 
be used to provide reference points in 
commission deliberations. 

The information is based on 39,304 
offenders sentenced between January 
1984 and February 1985. For offenders 
within the jurisdiction of the Parole 
Commission, the initial parole deci- 
sion was used to estimate the time 
that would actually be served. Where 
no initial parole decision was avail- 
able, the parole decision was esti- 
mated. An estimate of good time was 
also made for each offender sen- 
tenced to imprisonment. 

The report comprises 1,279 pages; 
except for a 37-page introduction that 
describes purposes and methodology, 
it consists entirely of 276 tables and 
275 graphs showing the punishments 
for various offense/offender groups. It 
is the first study to use information 
from the Federal Probation 
Sentencing and Supervision Informa- 

tion System (FPSSIS), which was in- 
augurated by the Administrative Of- 
fice in 1983 and provides data 
previously unavailable about the 
characteristics of offenses and 

The report, entitled Punishments 
Imposed on Federal Offenders, was pre- 
pared by Anthony Partridge, Patricia 
A. Lombard, and Barbara Meier- 
hoefer of the Center's Research Divi- 
sion. Because of its bulk and the 
probable limited interest in much of 
the detailed data, it has been repro- 
duced in very limited quantity. An 
abridged version, however, 
consisting of the introduction and an 
illustrative set of tables and graphs, 
has been printed under the title Pun- 
ishments for Federal Crimes, and may be 
obtained from Information Services, 
1520 H Street, N.W., Washington, 
DC 20005. Please enclose a self- 
addressed mailing label, preferably 
franked (12 oz.), but do not send an 

The full report may be inspected at 
the Center's Information Services Of- 
fice. A limited number of copies are 
also available for loan to federal court 
personnel and for interlibrary loan. 
The report is also being published pri- 
vately; those interested should write 
William S. Hein, Hein & Co., 1285 
Main St., Buffalo, NY 14209. 


LIVELY, from page 1 

Nashville, Memphis, and Louisville 
but they were not early enough to 
break much ground. I suppose the 
most unexpected development was 
the difficulty that we had with reme- 
dies. There was no queshon of viola- 
tion in cases from Kentucky and 
Tennessee; since state law required 
dual school systems, the violation 
was established as a matter of law. 
All we were concerned with was 
remedy, and to a large extent our 
deahng with the southern cases con- 
cerned itself with determining either 
whether a voluntarily accepted plan 
of desegregation went far enough or 
whether a court-imposed plan went 
too far. 

It was quite a different story, of 
course, in the cases from our two 
northern states. Michigan and Ohio 
outlawed segregation in their public 
schools many years ago, so the first 
battle was over whether there were 
violations in the school systems. 
Most school systems in those states 
resisted this first determination. 
Once it was determined that there 
had been an equal protection viola- 
tion in a particular school system we 
got into the same sort of thing that 
we had experienced earlier in the 
southern school cases — finding a 
suitable remedy. 

It is interesting that you mention 
Louisville and Detroit because an 
unexpected development did in- 

Speech by Judge Devitt 
Available from Center 

Your Honor, a brief address that 
Senior Judge Edward J. Devitt (D. 
Minn.) has given at FJC seminars 
as advice for newly appointed dis- 
trict judges, is now available as a 
Center publication. To obtain a 
copy, write to the Center's Infor- 
mation Services, 1520 H St., N.W., 
Washington DC 20005. Enclose a 
self-addressed mailing label, pref- 
erably franked (2 oz.). Please do 
not send an envelope. 

volve those two school systems. We 
approved a desegregation plan for 
Louisville that had the effect of re- 
quiring the Louisville Independent 
School District and the Jefferson 
County, Ky., school system to 
merge. They were independent by 
law, but the plan would only work if 
the two were actually merged. They 
did merge and are merged today. 
While we were working on the 
Louisville problem, the Detroit case 
came up to us. The judge there had 
said, "Well, Detroit is so rapidly be- 
coming a majority black city that 
there's really no feasible way to 
desegregate the Detroit school sys- 
tem without bringing in some white 
school systems." So in the Detroit 
case we approved a desegregation 
plan that could have involved 
exchanging pupils from 53 neighbor- 
ing suburban school districts with 
students from the Detroit school sys- 
tem in order to achieve a racial bal- 
ance in the schools. The Supreme 
Court held that this was not 
permitted, because the plaintiffs in 
the Detroit case had not proved that 
any of the suburban school districts 
were deliberately segregated or that 
their practices had contributed sig- 
nificantly to the problem of Detroit's 
rapidly becoming a one-race school 
system. It is interesting because on 
the surface the two remedies looked 
so similar, and yet the Supreme 
Court permitted the Louisville rem- 
edy to stand and reversed our court 
on the Detroit one. The difference, 
of course, is that both school sys- 
tems involved in the Louisville case 
had been segregated by law before 

You have testified before the Sen- 
ate Judiciary Committee on the im- 
pact of Social Security cases on the 
court caseload. Can you comment 
on the volume of such cases in your 
circuit and the effect it has on court 

First, I would like to say that my 
interest in the subject really began 
with a January 1977 Department of 
Justice report called The Needs of Fed- 

eral Courts. Attorney General 

Edward Levi appointed a committee 

See LIVELY, page 5 


June 2-4 Regional Seminar for Pro- 
bation Officers 
June 9-10 Judicial Conference Sub- 
committee on Judicial 
June 10-12 Regional Seminar for 
Probation Officers 

June 10-12 Workshop for Training 
Coordinators of the Eighth 

June 12-13 Judicial Conference Ad- 
visory Committee on Criminal 

June 12-13 Judicial Conference 
Subcommittee on Supporting 

June 16-17 Judicial Conference 
Subcommittee on Federal 

June 16-17 Judicial Conference 
Subcommittee on Federal- 
State Relations 

June 16-20 Seminar on "Constitu- 
tional Adjudication and the 
Judicial Process in the Federal 

June 18-19 Judicial Conference 
Committee to Implement the 
Criminal Justice Act 

June 18-20 Seminar for Magistrates 
of the Fifth and Eleventh 

June 19-20 Judicial Conference 
Committee on the Adminis- 
tration of the Bankruptcy 

June 23-24 Judicial Conference 
Committee on the Judicial 

June 26-28 Fourth Circuit Judicial 

June 30-July 1 Judicial Conference 
Committee on the Adminis- 
tration of the Criminal Law 

June 30-July 1 Judicial Conference 
Committee on the Adminis- 
tration of the Magistrates 


VELY, from page 4 

look into the problems of the fed- 
il courts and to prescribe some 
Tiedies. Then Solicitor General, 
w Circuit Judge, Robert H. Bork 
IS chairman of that committee, 
lich published a very fine analysis 

the problems of the federal 
irts. Among its recommendations 
s the establishment of a new sys- 
1 of tribunals to handle some of 
! litigation traditionally included 
the work of Article III courts. The 
■nmittee spoke specifically of a 
?dal court, probably to be estab- 
led under Article I of the Consti- 
ion, to handle such matters as So- 

Security cases. A number of bills 
^e been introduced in Congress to 
ate such a court, and the Judicial 
nference of the United States has 
iorsed the creation of this court, 

to date no legislation has been 
Jpted. I was pleased to note in 

New York Times in March that the 
tice Department is apparently 
V prepared to support once again 

creation of such a court, 
letting back to your original ques- 
i, in 1985 there were 18,225 Social 
urity cases filed in the district 
rts of the United States. Approxi- 
ely 24 percent of these, or 4,347, 
e filed in the district courts of the 
th Circuit. In 1985 there were 
'5 appeals of Social Security cases 

heard by an administrative law 
judge; they are reviewed by an ap- 
peals council within the Social Secu- 
rity Administration, and that results 
in a decision of the secretary. The 
disappointed claimant can then file 
an action in the district court, and in 
most cases the record is referred to a 
magistrate who studies the adminis- 
trative record. There is no new hear- 
ing after the administrative law 
judge's action. The magistrate 

appeals dockets. I believe if an Arti- 
cle I court were established to hear 
these cases, ordinarily there should 
be no appeal beyond that court. If a 
bona fide issue of statutory construc- 
tion or constitutionality were raised, 
however, there could be an appeal 
to a court of appeals to determine 
those legal questions. But there 
should be no further review of the 
record for substantial evidence, no 
third-layer review of that issue by 

"1 don't think you would take anything away from the 
Social Security claimant by creating [a] specialized court. 

makes a recommendation, and the 
district judge is required to review 
that same administrative record de 
novo before either accepting or re- 
jecting the magistrate's recommen- 
dations. This is all done on cross- 
motions for summary judgment. If 
the answer is still "no benefits," the 
claimant may appeal to the court of 
appeals for his or her circuit. Three 
judges then are required to read the 
same administrative record, and in 
some cases hear oral argument. In 
most cases, the only question from 
the time the proceedings end in the 
Social Security Administration is 
whether the decision is supported 
by substantial evidence. All of the 
judges are merely reviewing factual 
matters, and a very large portion of 

"[I]n the Social Security appeal 
judicial resources very wisely." 

we are not using our 

"1 district courts to courts of ap- 
s throughout the nation. Three 
idred one of these, or approxi- 
ely 25 percent of the national to- 
were filed in the United States 
rt of Appeals for the Sixth Cir- 
. These appeals constituted 11 
:ent of our court's civil docket, 
^hen you examine carefully what 
ivolved in the Social Security ap- 
, it becomes clear, to me at least, 
we are not using our judicial re- 
xes very wisely. These are disa- 
y cases. Most of these cases are 

each record consists of medical 

It seems to me that a special court 
could quickly acquire some expertise 
in this field. I don't denigrate the 
importance of Social Security cases 
to the litigants; like all cases, they 
are the most impotant thing in the 
world to the parties involved. But I 
do think the claimants would get 
much faster answers in a special 
court than they now do, being re- 
quired to take their turn on the 
crowded district court and courts of 

three appellate judges. 

So parties in Social Security cases 
don't stipulate? 

No, they seldom stipulate to any- 
thing. The claimant has medical 
proof, and the secretary often sends 
the claimant to a medical consultant, 
who frequently disagrees with the 
claimant's doctor. To have four 
See LIVELY, page 6 

Paper by Judge Hunter 
Published by FJC 

The Center recently published 
The Judicial Conference and Us Com- 
mittee on Court Administration, an 
18-page paper based on a presen- 
tation by Judge Elmo B. Hunter 
(W.D. Mo.), in his capacity as 
chairman of the committee, to the 
Conference of Metropolitan Dis- 
trict Chief Judges in October 1985. 

Judge Hunter provides a brief 
history of the administrative struc- 
ture of the federal courts and the 
origins of the Judicial Conference 
of the United States. He also de- 
scribes the current committee 
structure of the Conference, 
emphasizing the Committee on 
Court Administration and its 

A copy of this publication can be 
obtained by writing to Information 
Services, 1520 H Street, N.W., 
Washington, DC 20005. Enclose a 
self-addressed mailing label, pref- 
erably franked (2 oz.). Please do 
not send an envelope. 

'.•■/^•■■■■■;' ■" 




LIVELY, from page 5 

United States judges reviewing is- 
sues that are purely factual seems to 
me a waste of resources. I don't 
think you would take anything away 
from the Social Security claimant by 
creating this specialized court. 

Your circuit covers four states; 
you have 15 judgeships on the 
Court of Appeals for the Sixth Cir- 
cuit; and there are 56 district court 
judgeships. Do you make a point of 
visiting these jurisdictions regu- 

Our circuit covers Ohio, Michigan, 
Kentucky, and Tennessee. Let me 
describe the circuit to you in the 
words of the late Justice Potter 
Stewart: "The Sixth Federal Judicial 
Circuit is a cross-section of the na- 
tion, extending from the tip of 
Michigan's upper peninsula to the 
Mississippi border. It straddles the 
heartland of our country. So it is 
that the United States Court of Ap- 
peals for the Sixth Circuit is not a re- 

Positions Available 

Judge, U.S. Bankruptcy Court, 
Northern District of Texas. Salary 
to $68,400; 14-year appointment. 
Persons with law degrees whose 
character, experience, ability, and 
impartiality qualify them to serve 
in the federal judiciary may re- 
quest applications from Lydia G. 
Comberrel, Circuit Executive, U.S. 
Court of Appeals, 600 Camp 
Street, New Orleans, LA 70130. 

Circuit Executive, U.S. Court of 
Appeals for the Eighth Circuit. 

Salary to $68,000. Background in 
court administration essential. See 
28 U.S.C. § 332(e) and (0 for spe- 
cial qualifications and general func- 
tions. To assure consideration, ap- 
plication must be received by June 
25. Apply to Chief Judge Donald 
P. Lay, U.S. Court of Appeals, 
P.O. Box 75908, St. Paul, MN 


gional court but in every sense a na- 
tional one. Its workload reflects the 
pluralism and diversity of national 
life." That was an introduction to a 
speech that Justice Stewart made 
some years ago when he was our 
circuit justice. We think it describes 
the Sixth Circuit quite well. 

Do 1 make a point of visiting the 
districts regularly? 1 don't have a 
schedule, but 1 accept invitations to 
the various cities in our four states 
to judge moot courts and speak to 
bar associations and judges' groups. 
1 always try to see the judges while 1 
am there, but our circuit executive 
keeps up the regular contact with 
the district courts more than 1 do. 

Chief Judge Lively 

How are your panels chosen, and 
who makes up the list? 

We have fifteen active judges, and 
the court is now divided into three 
divisions. Each division has five ac- 
tive judges. The court sits to hear ar- 
guments thirty-six weeks each year, 
and each time the court is in session 
one of these divisions is sitting. A 
senior judge or a district judge joins 
the five active judges, and thus we 
have two panels each session. Both 
panels sit Monday, Tuesday, Thurs- 
day, and Friday. Each panel hears 
twenty argued cases and eight cases 
on briefs in those four days. They 
use Wednesdays for motion practice 
to try to keep abreast of the inunda- 
tion of motions that all courts of ap- 
peals are now experiencing. 

Workload Statistics 
Released by AO 

The Administrative Office has 
released the Federal judicial 
Workload Statistics report on the 
business of the federal courts for 
the 12-month period ended Dec. 
31, 1985. 

Requests for the report should 
be directed to the Statistical Analy- 
sis and Reports Division of the 
Administrative Office of the U.S. 
Courts, Washington, DC 20544. 

The panels are selected through a 
computer-assisted program, oper- 
ated by our circuit executive. Judges 
are assigned to a division of the 
court for six months at a time, and 
every six months these divisions are 
scrambled. The same three judges 
sit as a panel all four days of the 
week. Each judge on our court sits 
twelve weeks a year, hearing twenty 
argued cases, and deciding eight 
cases on briefs. Thus, each judge sits 
on 240 argued cases and 96 cases on 
briefs for a total of 336 per year. That 
is the normal load, not counting mo- 
tions, emergencies, or en banc hear- 
ings and rehearings. 

Your court was confronted with 
the issue of the constitutionality of 
applying certain law enforcement 
"profiles" used to detect suspected 
drug couriers in airports. Can you 
briefly explain this line of cases? 

Yes, we were often invited to rule 
on the validity of a so-called drug 
courier profile. It was argued that 
the profile provides probable cause 
for arrest of a person suspected of 
carrying contraband drugs. We 
never did hold that the profile alone 
provides probable cause. However, 
on several occasions our court has 
held that various factors included in 
the profile might raise a reasonable 
suspicion sufficient to support a lim- 
ited Terry-type stop, which is a tem- 
porary investigative detention. Most 
of our airport-stop cases concern one 
or both of the following issues: First, 
whether a person stopped for ques- 
See LIVELY, page 7 


IVELY, from page 6 

oning by officers — and perhaps 
ter requested to accompany offi- 
?rs to some area other than the 
ubiic area of the airport — was 
ieized" within the meaning of the 
jurth Amendment, and second, 
hether the consent of a person so 
opped was in fact voluntarily 
ven. The ultimate question, of 
urse, is whether the effect of one's 
■ing stopped for such questioning 
validates a later search. United 
ates V. Mendenhall [596 F.2d 706 
;h Cir. 1979)] is probably the lead- 
g case from the Sixth Circuit. It 
?nt to the Supreme Court, and 
ey reversed our finding of a 
urth Amendment violation. 
These are interesting cases be- 
use they involve rather unusual 
lice work. Some drug enforce- 
mt agency people have developed 
uncanny ability to spot drug cou- 
rs, and one agent, who operated 
some time in the Detroit airport, 
s particularly adept at this. I don't 
nk any court has approved the 
ig courier profile in toto. Maybe 
ne court has, but we have not. 
The Federal Rules of Appellate 
ocedure were adopted in 1968. 
e types of cases and the proce- 
res used to process cases in the 
leral courts have changed with 
? times, but the rules have not 
en significantly changed. As 
Jirman of the Advisory Commit- 
on Appellate Rules, do you give 
•ught to making those changes or 
changing how the rules are 

'Ve do give a lot of thought to 
mges. The Advisory Committee 
5 a twofold purpose. First is to 
•nitor on a continuing basis the 
?ration of the Federal Rules of Ap- 
late Procedure; second is to rec- 
mend changes to ensure the con- 
ued effective operation of the 
?s. So we monitor and we recom- 
nd changes. We receive sugges- 
ts from all sorts of sources about 
inges; from practicing lawyers. 

even litigants sometimes, judges 
who spot problems with the rules, 
law professors, obviously — from all 
these sources. Our practice is to con- 
sider every suggestion that we 

The first thing we do is pass the 
suggestions to the reporter for the 
committee. If she determines that a 
suggestion is identical or nearly 
identical to one that the committee 
has already investigated and dis- 
charged, we don't forward it to the 
full committee. Otherwise, after she 
makes her investigation and a report 
on how she thinks it would affect 
the operation of the courts of ap- 
peals, every suggestion is forwarded 
to the full committee for considera- 

The committee has just completed 
a study of rule 30, Federal Rules of 
Appellate Procedure, which requires 
an appendix in most civil cases. 
There was some thought that the ap- 

pendix requirement might be adding 
unnecessarily to the cost of appeals. 
The committee conducted an in- 
depth survey. We contacted many 
judges, lawyers, law professors, and 
clerks of court to determine how the 
appendix is being used — whether it 
is wasteful, whether it is something 
that the judges rely on, and whether 
it helps move cases along. Some of 
the courts of appeals do not require 
an appendix. That is not a violation 
of the rules because there is an ex- 
ception in rule 30(f) that permits a 
court of appeals to dispense with the 

The committee concluded that 
most courts of appeals still find the 
appendix useful and valuable; also 
that lawyers find it a good discipline 
early in the appellate process to be 
required to think through what they 
want to send to the court of appeals 
in addition to their briefs. So the 
See LIVELY, page 8 

FJC Systems Director Returns to Research 

Gordon Bermant, the director of 
the FJC Innovations and Systems 
Development Division since January 
1982, has asked to return to the Re- 
search Division, where he served for 
six years before moving to the Sys- 
tems Division. Mr. Bermant came to 
the FJC as a research psychologist in 
the Research Division in July 1976 
and was deputy director of that divi- 
sion from January 1980 until January 
1982, when he became director of 
the Systems Division. 

In his letter to Director A. Leo 
Levin requesting reassignment, Mr. 
Bermant wrote: "I have always con- 
sidered research to be my primary 
calling, and I would be pleased to 
return my energies to the very im- 
portant work of the Research Divi- 
sion. What we began in systems in 
1982 set the stage for a transforma- 
tion of automated systems for the 
courts [and] we have accomplished 
much. We have initiated the evolu- 
tion from centralized to decentral- 
ized computing; installed a 

nationwide standard operating sys- 
tem; built a powerful, flexible case 
management system that can pro- 
vide full case management services 
through the operation of an elec- 
tronic docket; begun pilot tests of 
this system in eight appellate, dis- 
trict and bankruptcy courts; and de- 
veloped training curricula and mate- 
rials to support the continued 
successful operation of this system. 
Along the way we also built a proto- 
type case-management system for 
the probation offices and conducted 
a major study of alternative court re- 
porting methods." 

In response. Director Levin said 
Mr. Bermant "has been innovative 
and creative, inspired dedication on 
the part of his staff, and achieved an 
impressive record of accomplish- 
ment despite great fiscal constraints. 
We count ourselves fortunate that 
he will remain with the Center." 

The vacancy caused by Mr. 
Bermant's return to the Research Di- 
vision has been announced. ■ 



LIVELY, from page 7 
committee came to the conclusion 
that the appendix is still valuable, 
and we recommended that it be 
kept. We also recommended sanc- 
tions for overinclusion of materials 
in the appendix or for otherwise not 
following the rules. That was an in- 
teresting study, and it's the sort of 
thing that an advisory committee 
should do as part of its monitoring 
service to the courts. 

What was the reaction to your rec- 
ommended sanctions? 

Sanctions are now very popular 
with courts. Our committee found 
they are not very popular with the 
bar when we put our proposed 
amendments out for comment. Most 
of the comment was on this one 
small provision recommending 

I want to emphasize that the Ad- 
visory Committee is just that, advi- 
sory. Our Standing Committee on 
Rules of Practice and Procedure ac- 
tually makes the final decision on 
what amendments to the various 
rules — civil, criminal, bankruptcy, 
admiralty, and appellate — will be 
recommended to the Judicial Confer- 
ence and to the Supreme Court. Our 
job is to keep in touch with the 
bench and bar to find out where im- 
provements can be made. There will 
always be a lot of room for improve- 
ment, I am sure. 

Following the September 1985 
meeting of the Judicial Conference, 
state judges were appointed to the 
advisory committees on rules. Chief 
Justice Vincent McKusick of the Su- 
preme Court of Maine is on your 
committee. Is this mutually 

It is very helpful to our commit- 
tee. Chief Justice McKusick was ap- 
pointed in 1984. We were the first 
advisory committee to have a state 
judge added. Our response was so 
enthusiastic, I think it had some- 
thing to do with the movement to 
put them on ail of the advisory com- 
mittees. It is a great help to get the 
point of view of an experienced state 

appellate judge. Many states mod- 
eled their rules after the federal 
rules. Yet, they "plow a little differ- 
ent ground," so they have some dif- 
ferent experiences with the rules, 
and they can contribute greatly. 
Chief Justice McKusick was a fine 
addition to our committee. 

What's the answer to the criticism 
that local rules go beyond the na- 
tional rules? 

It's a valid criticism. Obviously, 
such far-reaching local rules are not 
within the spirit of the national 
rules. Uniformity was one of the 
chief aims of the movement toward 
national rules of practice. There is 
some justification for local varia- 
tions, because each circuit has a his- 
tory that antedates 1968 by a good 
many years; practices had built up, 
and it would be very difficult to tell 
the bar that these practices were go- 
ing to be abandoned. So local rules 
that do not seriously violate the 
rules of appellate procedure, but 
more or less supplement them, do 
not create problems. However, 
Judge Edward Gignoux reported to 
the Judicial Conference in March 
that the Standing Committee on 
Rules of Practice and Procedure is 
beginning a study of all local rules. 
This is a tremendous task, but it 
should lead to a reduction in con- 
flicts between national and local 

The first woman to be appointed 
to a federal court was Florence 
Allen, who took her oath on Apr. 9, 
1934. Did the judges on the Sixth 
Circuit — all men — resent a woman 
coming into what had been strictly 
a "man's world"? Are there any 
around the circuit now who remem- 
ber her? 

I'm the only one. 1 clerked for 
Judge Shackelford Miller, Jr., of the 
Sixth Circuit of 1948. 1 was in the 
courthouse a lot that year, and 1 
knew Judge Allen. She was a formi- 
dable lady. But she was the only 
judge who always remembered the 
law clerks' names. Of course then 
there were only six law clerks; but 

she made the effort. 

The gentlemen with whom she 
served were from a different age. 
They probably had never known a 
woman lawyer, much less a woman 
judge. She was not mistreated, but 
some of these men were uneasy 
with her. They had never experi- 
enced coUegial relations with a 
woman. Although these men, who 
went to law school in the teens and 
the twenties, weren't prepared for a 
female colleague, she was highly re- 
spected. And as if to prove that she 
See LIVELY, page 9 

Robbins Named Acting 
Head of Education Div. 

Professor Ira Robbins, currently 
serving as a 1985-86 judicial fellow 
in the Center's Research Division, 
has assumed the position of acting 
director of the Continuing Education 
and Training Division. Professor 
Robbins is a professor of law at 
American University's Washington 
College of Law. 

Professor Robbins is already well 
known to the federal judiciary. He 
has lectured widely for the Center 
and has spoken at meetings of both 
state and federal judges on several 
subjects of concern to the courts, in- 
cluding habeas corpus and capital 
cases. He is a graduate of the Uni- 
versity of Pennsylvania and Harvard 
University Law School and was a 
pro se law clerk in the Second Cir- 
cuit for two years. 

Kenneth C. Crawford, who retired 
as the director of the Continuing Ed- 
ucation and Training Division on 
May 2, has continued to make his 
services available to the Center on a 
contract basis. 

The search for a new director of 
the Continuing Education and Train- 
ing Division is continuing. Inter- 
ested applicants for the position 
should send resumes and sup- 
porting papers to the personnel di- 
rector. Federal Judicial Center, 1520 
H St., N.W., Washington, DC 
20005. ■ 


I'ELY, from page 8 
s an equal, at least, of the men, 
? became the patent expert on the 
th Circuit. She wrote some of the 
St difficult patent decisions that 
ne out of those years. Judge 
en, I am sure, felt somewhat left 
t of things at times, but the re- 
ct was complete. 

f you could make some major 
nge in the federal court system 
at would it be? 

have mentioned the Article I 
irt for Social Security appeals, 
■re are several changes that many 
ges agree on. One is the elimina- 
I or sharp restriction of diversity 
sdiction. Beyond that, I would 

clear from the rule that deals with 
petitions for rehearing en banc that 
they should be the exception and 
not the rule. However, they are now 
filed in almost every case. All 15 
judges must read all the petitions, 
and very few are granted. One sug- 
gestion that I have heard is to re- 
quire an additional fee to file a peti- 
tion for rehearing en banc; it could 
be a fee comparable to the filing fee 
in district court. The chance of 
getting rehearing en banc is remote, 
and it should be remote. These cases 
have been heard by panels of three 
judges, and it is unrealistic for law- 
yers to expect rehearing after a panel 
of three judges has reviewed the 

"I favor the Intercircuit Panel Act, S. 704, which has a 
sunset provision after five years." 

to see more experimentation in 
federal court system. I think we 
1 to stay wedded to our systems 
our methods pretty much. 
Teas we might be more venture- 
e. I favor the Intercircuit Panel 

S. 704, which has a sunset pro- 
on after five years. If it is not 
king the way it's intended to, 
experiment dies. I think that ap- 
ich is very useful when an idea 
■oached for improving the court 

ne practice of the courts of ap- 
s that I would like to see 
iged is permitting petitions for 
aring en banc to be filed without 
cost to the litigants. It is very 

case. I would like to see some 


One of my serious concerns now, 
and probably the most serious con- 
cern of all appellate judges, is the 
fact that sentence review is in the 
offing. This could greatiy enlarge the 
number of appeals. There are some 
criminal cases now that aren't ap- 
pealed. I doubt that there would be 
any that would not be appealed if 
we had sentence review. This repre- 
sents a really worrisome develop- 
ment for the courts of appeals be- 
cause we are already fully occupied 
and the idea of having to review 
sentencing is something that we 
don't relish. ■ 

SLATION, from page 1 
). It has been the Judicial Con- 
ice's position that placing estate 
linistration under the Depart- 
t of Justice creates a conflict of 
est and generates costly dupli- 
ns of effort. The Conference be- 
s that the "administrative" func- 
s associated with bankruptcy 
tes pending before the courts 
lid remain the judiciary's 

lally, the Senate also amended 
udgeship bill to include special 

provisions for bankruptcy cases in- 
volving family farmers. The amend- 
ment incorporates the provisions of 
S. 2249. Upon completing considera- 
tion of the bill and amendments, the 
Senate took up H.R. 2211, a House- 
passed bill dealing with farm bank- 
ruptcies, amended that bill to incor- 
porate the provisions of the Senate 
bill as amended, and passed the 
amended version of H.R. 2211. 

• Retirement. Draft legislation has 
been submitted to Congress to pro- 
See LEGISLATION, page 10 

Recusal Not Needed 
If Conflict Is Clerk's 

If a judge's law clerk has a possi- 
ble conflict of interest, the clerk, not 
the judge, must be disqualified, the 
Eleventh Circuit Court of Appeals 
has held. Hunt v. American Bank & 
Trust Co., 783 F.2d 1011 (11th Cir 

Hunt, acting as receiver of a life 
insurance company, brought suit 
under the Racketeer Influenced and 
Corrupt Organizations Act (RICO), 
securities law, and state common 
law against defendants for allegedly 
engaging in fraudulent transactions 
that depleted the company's assets. 
Hunt argued that the district judge 
should have recused himself be- 
cause two of the judge's law clerks 
accepted offers of employment from 
a law firm representing several of 
the defendants while the case was 

The Court of Appeals disagreed: 
"Absent actual bias, disqualification 
is necessary only if a reasonable per- 
son, knowing all the circumstances, 
would harbor doubts about the 
judge's impartiality [citations 
omitted]. It is true that a reasonable 
person might wonder about a law 
clerk's impartiality in cases in which 
his future employer is serving as 
counsel. Clerks should not work on 
such cases, just as a judge should 
not hear cases in which his business 
associates are involved .... A judge 
is not necessarily forbidden, how- 
ever, to do all that is prohibited to 
each of his clerks. If a clerk has a 
possible conflict of interest, it is the 
clerk, not the judge, who must be 

In this case, the record indicated 
that neither of the two clerks in 
question worked on the case or even 
talked about it with the judge to any 
significant extent, and the appellant 
did not allege any actual bias on the 
part of the district judge. Thus, the 
district judge properly denied the 
motion for recusal, the Eleventh Cir- 
cuit held in a per curiam opinion. ■ 



LEGISLATION, from page 9 

vide a new retirement system for 
fixed-term judicial officers, a system 
similar to that now available to terri- 
torial judges under 28 U.S.C. § 373. 
The legislation would extend the 
coverage of the judicial retirement 
system to bankruptcy judges, judges 
of the United States Claims Court, 
and United States magistrates. 

The purpose of the legislation is to 
provide a viable system for devel- 
oping a corps of "senior" federal ju- 
dicial officers available to assist in 
the disposition of cases before the 
courts. Limited authority now exists 
to recall retired bankruptcy judges 
and Claims Court judges. The mag- 
istrates system has no parallel to 
even that limited authority. 

In his capacity as secretary to the 
Judicial Conference of the United 
States, L. Ralph Mecham, director of 

the AO, transmitted the Confer- 
ence's recommendation of the pro- 
posed legislation in letters earlier 
this year to House Speaker Thomas 
P. O'Neill, Jr., and Senate President 
George Bush. Those letters noted: 
"The current Civil Service Retire- 
ment System is designed for the 
typical career Government employee 
who enters the civil service early 
and remains for many years. 
Recruitment for judicial office of in- 
dividuals who are at the peak of le- 
gal experience and earnings is made 
more difficult under that retirement 
system because their age often pre- 
cludes the attainment of sufficient 
years of service to earn significant 
retirement benefits under the Civil 
Service Retirement program." 

• Annuities. H.R. 3570, one provi- 
sion of which would reform and im- 
prove the federal justices and judges 
survivors' annuities program (see 

The Third Branch, vol. 18, no. 2, at 3), 
was passed, with amendments, by 
the Senate. The House version 
would increase the amount of the 
judges' annual contribution rate to 
the annuities system from 4.5 per- 
cent to 5 percent, with the govern- 
ment providing any difference nec- 
essary to fund the program. The 
Senate amendments do not change 
the House-passed increase in the 
judges' contribution but limit the 
government's rate of contribution to 
9 percent. The Senate version sets 
an annuity ceiling of 50 percent of 
the judge's salary (compared to 55 
percent under the House version). 
(The present maximum is 40 per- 
cent.) The minimum amount of an- 
nuity— 30 percent in the House 
version— is 25 percent as passed by 
the Senate. The bill also makes sig- 
nificant improvements in annuities 
for surviving children. ■ 





Vol. 18 No. 6 June 1986 

The Federal Judicial Center 
Dolley Madison House 
1520 H Street, N.W. 
Washington, DC 20005 

Official Business 

Postage and 

fees paid 

United States 


U.S. GOVERNMENT PRINTING OIUCE 1986-491-221-40002 





-"n M. 

JULY 1986 

lief Justice Burger Announces Retirement to Devote Fiill Time to 
centennial Con;im'n; Justice Rehnquist to Be New Chief Justice 

Tributes to Chief Justice Warren E. Burner 
William H. Rehnquist, Associate 
Justice, Supreme Court of the 
United States, Chief Justice of the 
United States-designate 

I can say without any doubt in my 
mind at all that Chief Justice Burger 
will be remembered not just for his 
leadership of the Supreme Court of 
the United States but as one of the 
great judicial administrators that has 
ever held that office. Certainly he 
ranks with Chief Justice Taft in that 

A. Leo Levin (Director, Federal Ju- 
dicial Center) 

Chief Justice Burger's impact on 
the procedures and processes of our 
courts is of historic dimension. He 
has long recognized the need to seek 
alternatives to tradition-encrusted 
ways of doing judicial business. Nor 
has his interest been limited to 
courts. But for him, the phrase "al- 
ternative dispute resolution" would 
not have gained the currency it has 
in our lexicon. 

Chief Justice-designate Rehnquist 

Chief Justice Burger 

hief Justice Warren E. Burger 
mitted to President Reagan on 
? 17 a letter announcing his re- 
nent "to be effective July 10 or as 
n thereafter as my successor is 

le Chief Justice announced that 
of the compelling reasons was 
ssure that the work of the Com- 
ee on the Bicentennial of the 
stitution, of which he is chair- 
, goes forward so that "the story 
ur great constitutional system 
1] be recalled to the American 
pie . . . to tell that story as it 
jld be told." The conclusion of 
letter stated the Chief Justice's 
ntion "to continue to devote 
y energy to help make our sys- 
of jushce work better." 
esident Reagan on June 20 nom- 
?d Associate Justice William H. 
iquist to be the next Chief Jus- 
of the United States, 
le Chief Justice's announcement 
? as The Third Branch was at the 
ters. Some comments on his 
ributions to the judiciary follow. 

His curiosity, and his realization 
that innovations must be explored 
even though some will fail, have 
reaped benefits for the judicial sys- 
tem and, more important, for the lit- 
See BURGER, page 2 

New D.C Circuit Chief Judge Wald Interviewed 

Judge Patricia M. Wald was born in 
Connecticut and graduated from 
Connecticut College and Yale Law 
School. She is a member of Phi Beta 
Kappa and Order of the Coif. After 
clerking for Judge Jerome Frank (2nd 
Cir.), she became affiliated with a Wash- 
ington, D.C, law firm. 

Judge Wald was an attorney with the 
Office of Criminal Justice of the Justice 
Department in 1967-68, then worked for 
D.C. Legal Services, and later for the 
Mental Health Law Project for five 
years, where she was litigation director. 
From 1977 to 1979, she was assistant at- 
torney general for legislative affairs at 
the Department of Justice. 

Service on various commissions, 
boards, and councils, including the Pres- 

ident's Commission on Crime in the Dis- 
trict of Columbia, demonstrates her in- 
terest in subjects as diverse as juvenile 
justice, drug abuse, administrative law, 
and the judicial process. 

Judge Wald was appointed to the Dis- 
trict of Columbia Circuit in 1979. On 
July 26, she will become chief judge of 
that circuit. 

Your new title carries with it a lot 
of administrative work. Some 
judges like being a court adminis- 
trator; others object and say they 
would prefer to have their time 
spent strictly on the cases. How do 
you feel about this? 

Seven years on the court have 

taught me how important adminis- 

See WALD, page 6 

2 # 



BURGER, from page 1 
igants and citizenry it serves. He be- 
lieves deeply in the importance of 
judicial education. Broad acceptance 
of these values is a legacy of the 17 
years he has chaired the Board of 
the Federal Judicial Center, an or- 
ganization he helped create through 
conversations with his good friend 
Warren Olney. He brought wisdom, 
energy, and great dedicahon to that 
chairmanship. As a result, much of 
the best of the Center's work is a re- 
flection of his initiatives, insights, 
and vision. 

L. Ralph Mecham (Director, Admin- 
istrative Office, FJC Board Member) 
I know of no Chief Justice who 
has achieved more in reshaping fed- 
eral judicial administration than has 
Chief Justice Warren Burger. He is a 
judges' Chief Justice, concerned 
about their welfare and morale. He 
is also jealous of the lofty reputation 
of the judiciary for integrity, probity, 
and the careful husbanding of tax- 
payers' resources. 

William E. Foley (Former Adminis- 
trative Office Director) 

I was fortunate to be both deputy 
director and director of the AG dur- 
ing the time Chief Justice Burger 
was in office, especially because of 
his deep interest in court administra- 
tion, not only the federal courts but 
also the state courts. Certainly he 
ranks with Chief Justices Taft and 
Hughes, who also worked so effect- 
ively in this area. In this respect as 
well as many other ways, he was an 
inspiration to all of us. He will be 
greatly missed. 



Published monthly by the Administrative Of- 
fice of the U.S. Courts and the Federal Judicial 
Center. Inquiries or chanj^es of address 
should be directed to 1520 H Street, N.W., 
Washington, DC 20(K)5. 


Alice L. O'Donnell, Director, Division of 
Inter-Judicial Affairs and Information Serv- 
ices, Federal Judicial Center. I'eter (i. 
McCabe, Assistant Director, Program Man- 
agement, Administrative Office of the U.S. 

Ernest Friesen (Former Administra- 
tive Office Director) 

Everyone in the field of court ad- 
ministration owes Chief Justice 
Burger their grahtude for his leader- 
ship in establishing its roots and 
supporting its growth. We would 
not be where we are today without 
him. He has done more for judicial 
administration than any judge in our 
Nahon's history. 

Tributes from Chief Judges of 
the Circuits 

Chief Judge Spottswood W. Robin- 
son III (D.C. Cir.) 

I was privileged to serve with 
Chief Justice Burger on the United 
States Court of Appeals for the D.C. 
Circuit and to work with him as 
Chief Justice. Lawyers and legal 
scholars will long recall his impor- 
tant contributions in many areas of 
the law in decisions over his 30 
years on the federal bench. That 
body of work speaks for itself. As 
federal judges we are acutely aware 
of his unparalleled commitment to 
improving the efficiency and admin- 
istration of the federal courts and as 
a result the quality of justice they 
dispense. All Americans are in- 
debted to Chief Justice Burger for 
these contributions to our Nation. 

Chief Judge Levin H. Campbell (1st 

I doubt the lower federal courts 
have ever had, or will ever have 
again, as staunch a friend and leader 
when it comes to promoting their ef- 
ficient management and operations. 
The Chief knew that it takes more 
than words on paper to make a 
court function. Courts are people — 
judges, clerks, and administrators. 
They have all the management prob- 
lems of any human institution. Chief 
Justice Burger worked tirelessly to 
see that the federal courts meet the 

highest possible administrative 


Chief Judge Wilfred Feinberg (2nd 


In Warren Burger's 17 years as 

Chief Justice, he labored untiringly 

to give the judiciary the means of 

coping with the problems thrust 
upon them by the unprecedented 
number and complexity of the cases 
coming into the courts. He was truly 
the Chief Justice of the United 
States, focusing his concern not just 
on the federal judiciary but on the 
state systems as well. For example, 
the Institute for Court Management, 
the National Center for State Courts, 
the use of circuit and district court 
executives, and the modernization 
of equipment are all due to his lead- 
ership. His efforts to obtain an ade- 
quate level of compensation for the 
federal judiciary were unceasing. 
His place in history is secure. 

Chief Judge Ruggero J. Aldisert 
(3rd Cir.) 

I know Chief Justice Burger well. I 
worked with him for seven years as 
a member of the Federal Judicial 
Center Board and, more recently, as 
a member of the Judicial Conference 
of the United States. He has a pen- 
chant for detail and was thoroughly 
prepared for every agenda item. He 
shall be remembered for a unique 
administrative style and a profound 
interest in the entire federal 

Chief Judge Harrison L. Winter (4th 

I express my personal regret and 
that of each member of the court 
that Chief Justice Burger is relin- 
quishing his office. His service has 
covered a momentous 17 years. He 
has established an enduring reputa- 
tion for superb leadership and has 
earned the admiration and respect of 
all members of the judiciary. We 
wish him well in the years ahead. 
Chief Judge Charles Clark (5th Cir.) 

The Chief Justice advanced the sci- 
ence, the art, and the style of judg- 
ing as has no other person in his- 
tory. He does not leave a legacy of 
precedent alone. Because his unique 
zeal and zest for judicial administra- 
tion produced a myriad of innova- 
tions, every member of the third 
branch can do the work of justice at 
today's pace. 

See BURGER, page 13 

veral Circuit Judicial Conferences Held, 
ide Range of Topics Discussed, Debated 

:hief Justice Burger and Justices ability and about the Department of 

■ry Blackmun, Byron R. White, 
n Paul Stevens, Sandra Day 
'onnor, and Lewis Powell were 
mg the speakers at circuit confer- 
?s held recently. 

hief Jushce Burger, circuit justice 
:he D.C. Circuit, spoke at the cir- 
's judicial conference, held in 
liamsburg, Va. Chief Judge 
ttswood W. Robinson III wel- 
ed attendees to the conference, 
panel on affirmative action was 
lerated by Judge Antonin Scalia. 
conference also featured work- 
?s on "Juvenile Justice" (moder- 
I by District Judge Joyce H. 
en); "Is Deregulation Dead?" 
derated by Circuit Judge Lau- 
e H. Silberman); "Problems of 
Bench and Bar" (moderated by 
rict Judge Thomas F. Hogan); 
"Difficult Choices: Coping With 
rging Caseload in the Court of 
eals" (moderated by Judge 
cia M. Wald, who will become 
f judge of the circuit this 
th). Professor Henry P. Mon- 
in of Columbia University 
ol of Law spoke on "Taking the 
ts of Appeals Seriously." 
e fourth Federal Circuit judicial 
?rence was held in Washington, 
Chief Judge Howard T. Markey 
rted on the state of the court, 
e Markey moderated a discus- 

"The First Three Years of the 
ral Circuit: A Critique," which 
ired views of members of the 
vho specialize in the areas of 
nts and trademarks. Claims 
t practice. Court of Interna- 
1 Trade practice, and Merit Sys- 

Protection Board practice. 
?s representing the Federal Cir- 
Daniel M. Friedman and Helen 
ies), the United States Court of 
national Trade (Chief Judge 
ird D. Re), and the U.S. Claims 
t (Chief Judge Loren A. Smith) 
tiented on the lawyers' views. 
:iate Attorney General Arnold 
■ns spoke on the crisis in tort li- 

Justice's new guidelines regarding 
consent decrees and special masters. 
Separate "breakout sessions" on the 
various areas of practice in the Fed- 
eral Circuit dealt with specialized 
topics in each area. 

Chief Judge Charles Clark pre- 
sided over the forty-third Fifth Cir- 
cuit judicial conference, held in 
Houston, Tex. Justice Byron R. 
White, circuit justice for the Fifth 
Circuit, and Solicitor General 
Charles Fried were among this 
year's speakers. Program segments 
included Duke University Law 
School Dean Paul D. Carrington's 
talk on "The Constitutionalization of 
Morality"; the introduction of new 
judges; panels on recent decisions of 
the Supreme Court, jury selection 
and comprehension, bankruptcy 
cases, RICO liability, and complex 
litigation; and talks on mass torts, 
federalism, and the subject "Are 
Lawyers Benefiting Our Society?" 

The forty-seventh Sixth Circuit ju- 
dicial conference was held in Mem- 


phis, Tenn. Chief Judge Pierce 
Lively welcomed the conferees. Jus- 
tice Sandra Day O'Connor, circuit 
justice for the Sixth Circuit, ad- 
dressed the participants. A panel on 
civil RICO discussed developments 
since the case of Sedima v. Imrex Co., 
105 S. Ct. 3275 (1985). Other panels 
dealt with recent developments in 
the awarding of fees in federal 
courts and in § 1983 litigation. 

The Seventh Circuit judicial con- 
ference was held in Milwaukee, Wis. 
Chief Judge Walter J. Cummings 
gave a report on the state of the ju- 
diciary. Justice John Paul Stevens, 
circuit justice for the Seventh Cir- 
cuit, gave a report on the work of 
the Supreme Court, and Attorney 
General Edwin Meese III and Con- 
gressman Robert W. Kastenmeier 
(D-Wis.) spoke. "Current Advocacy 
Issues in the Court of Appeals" and 
"Current Practice Problems in the 
District Courts" were among the 
presentations. Both discussions were 
led by panels of judges and prac- 
ticing lawyers. The session on cur- 
rent advocacy issues was designed 
to elicit an exchange of views on the 
See CIRCUITS, page 15 


Civil Rights Plaintiff Awarded Fees, Costs 
From State Judge Under Pulliam Rationale 

In a civil rights case brought by a 
woman who had been jailed by or- 
der of a state judge, the defendant 
judge has been ordered to pay attor- 
neys' fees and costs pursuant to 42 
U.S.C. § 1988. The case, Davis v. 
City of Charleston, No. S 84-283C[D], 
slip op. (E.D. Mo. May 6, 1986), was 
decided by U.S. District Judge H. 
Kenneth Wangelin and depended 
for its holding on the Supreme 
Court's decision in Pulliam v. Allen, 
466 U.S. 522 (1984). Pulliam held that 
Congress did not intend to limit the 
injunctive relief available under 42 
U.S.C § 1983 so as to prevent such 
relief against a state judge and that a 
prevailing plaintiff in such a case is 
also entitled to recover attorneys' 
fees from a defendant judge under 
§ 1988. 

The plaintiff in Davis had been 
sentenced to 14 days in jail by a 
Missouri circuit judge after she 
failed to pay a $250 fine for dis- 
turbing the peace. The judge had is- 
sued an order requiring plaintiff to 
appear and show cause why the fine 
would not be paid, or to pay the fine 
by a certain date. The plaintiff in- 
formed the court by telephone on 
the appointed date that she did not 
have the money to pay the fine, 
thereby raising "at least an infer- 
ence" that the reason for nonpay- 
ment was one of poverty rather than 
contempt. Judge Wangelin ruled 
that the Missouri judge erred when 
he sent her to jail without first hold- 
ing an "on-the-record" hearing to 
determine conclusively the reason 
See FEES, page 12 

4 ^J^ 



Public Hearing Held on Prior Records; 
Questions About Guidelines Answered 

This IS one in a series of articles to 
keep federal judges and supporting per- 
sonnel informed about the Sentencing 
Commission's work. 

The commission's second public 
hearing, on May 22, dealt with how 
the sentencing guidelines should 
treat a defendant's prior criminal 
record: How, for example, should 
the commission define state felony 
and misdemeanor offenses in view 
of the definitional disparity among 
states and between states and the 
federal system? How, if at all. 






should the guidelines take into ac- 
count the length of time that defend- 
ants with prior records have gone 
without committing new crimes? 
Should juvenile offenses be consid- 
ered in establishing sentences for 
adult offenders? 

The hearing continued the dia- 
logue between the commission, 
members of the criminal justice com- 
munity, and other interested groups 
and individuals. Among the wit- 
nesses were William F. Weld, U.S. 
attorney from Boston; Thomas W. 
Hillier, federal public defender from 
Seattle; Donald L. Chamlee, director 
of the AO's Probation Division, and 
three probation officers from across 
the country; and Melvin D. Mercer, 
section chief in the FBI's Identifica- 
tion Bureau. 

Hearings on sanctions imposed on 
organizations were held June 10. 
Hearings are scheduled on sentenc- 
ing options (July 15) and plea negoti- 
ations (Sept. 23). 

Questions and answers. When- 
ever the commission meets with 
judges, lawyers, probation officers, 
and others in criminal justice, many 
of the same questi{)ns are asked. The 

"News from the Sentencing Com- 
mission" column will present some 
of these questions and answers, 
which, said Judge William W. 
Wilkins, the commission's chairman, 
"reflect the opinion of the U.S. 
Sentencing Commission and are 
phrased in terms of what will hap- 
pen when the guidelines go into 

When do the guidelines become effec- 

The commission must submit 
sentencing guidelines to Congress 
by April 13, 1987. Congress has six 
months from the date of submission 
for examination and review. By stat- 
ute, the guidelines are to go into ef- 
fect at the end of this six-month pe- 
riod. Congress may, of course, 
change these dates. 

Because parole is abolished for defend- 
ants sentenced under the guidelines, 
what will happen to defendants sen- 
tenced prior to the effective date of the 


Inmates serving existing sentences 
will not be affected when the sen- 
tencing guidelines go into effect. The 
guidelines and policies promulgated 
by the commission will only apply to 
those defendants who commit of- 
fenses and are sentenced after the 
effective date of the guidehnes. The 
release date for prisoners who were 
not sentenced under the guideline; 
will be set by the Parole Commissior 
before it is statutorily abolished five 
years after the guidelines go into ef 
feet (see 18 U.S.C. § 3551). 

Will the guidelines allow for consider 
ation of special concerns or problems in t 
local community regarding a particula 

Yes. Congress has authorized th( 
commission to take into considera 
tion relevant pubhc concern gener 
ated by an offense, the community 
view of the gravity of an offense 
and the current incidence of an oi 
fense in the community and nation 
ally (see 28 U.S.C. § 994(c)). 

See SENTENCING, page ] 

Massachusetts Calendar Notes Bicentennial Events 

The calendar of the United States 
District Court for the District of 
Massachusetts contains a lesson in 
constitutional history every day. 

That's because since March, the cal- 
endar of court business posted each 
day throughout the courthouse and 
distributed to all court-related offices 
also includes a brief note describing a 
significant event in constitutional his- 
tory that occurred in a previous year 
on that date. These "United States 
Constitution Bicentennial Notes" ap- 
pear as the lead item on the daily cal- 
endar, neatly boxed and in boldface 

"It's an eyecatcher," explained 
Clerk of Court George F. McGrath, 
whose office prepares the calendar. 
"It's a constant reminder of the Con- 
stitution's history, every single day." 
McGrath explained that the idea 
was proposed by judge A. David 
Mazzone, upon receipt of a bicenten- 
nial calendar issued by the Commis- 
sion on the Bicentennial of the United 
Slates Constitution. Chief judge An- 

drew A. Caffrey readily endorsed the 
concept, McGrath said, and starting 
on March 20 and every court day 
since, the clerk's office has headlined 
its daily calendar with the historical 
notes from the commission's bicen- 
tennial calendar. 

The bicentennial notes have quickly 
become a popular item around the 
courthouse, McGrath said. For exam- 
ple, on May 14, the calendar noted 
that on that date in 1787, the opening 
of the Constitutional Convention was 
delayed because representatives of 
only two states were present. 
McGrath said that his office received 
numerous calls from readers that day 
inquiring, "which two states?" 

Sample copies of the District of 
Massachusetts daily calendar incor- 
porating the bicentennial notes are on 
file at the Center, and may be ob- 
tained by writing to Information Serv- 
ices, 1520 H Street, N.W., Washing- 
ton, DC 20005. Please enclose a 
stamped, self-addressed envelope (1 

:hief Justice Burger Shares Concerns for 
administration of Justice with ALI Meeting 

The legal profession is changing, 
id some of these changes reflect 
?gatively on the profession. Chief 
stice Burger told the annual meet- 
g of the American Law Institute. 
In his speech, the Chief Justice 
:ed "very disturbing developments 
the administration of justice 
Kich must be studied," including: 

• Excessive and unrealistic jury 
/ards, especially on punitive dam- 

• High increases in insurance 
sts, especially for product liability, 
ofessional practice liability, and 
ler comparable areas; 

» Unnecessarily long trials, many 
les prolonged when judges allow 
? lawyers to control the jury selec- 
n process; the jury selection is the 
iges' responsibility, after receiving 
m counsel, if necessary, proposed 
Bsrions to prospective jurors; 
» Contingency fees. The whole 

area should be studied, said the 
ief Justice, and where necessary 
rected. "The true function of our 
)fession should be to gain an ac- 
•table result in the shortest possi- 

time with the least amount of 
?ss and the lowest possible cost to 

client. If courts do not take con- 
1 of this subject, legislatures will." 
'ublished conclusions that a "liti- 
ion explosion" does not exist are 
nsense; the Chief Justice is ada- 
nt that increasingly heavy case- 
is are prevalent in both state and 
eral courts, especially the latter. 
1 speaking to the same group last 
r about the administration of civil 
tice in the United States, the 
ef Justice asked, "Is there a better 
iV' The ALI studied the issues 
ed by his question, and ALI Di- 
:or Geoffrey Hazard, ALI Presi- 
it Roswell Perkins, and Judge 
n M. Adams of the Third Circuit 
planning a conference to explore 
issues. Judge Adams is chairman 
he ALTs organizing committee, 
date has been set. 

A related development is a study 
of the legal profession commenced 
last year by the ABA's Commission 
on Professionalism under the chair- 
manship of Justin A. Stanley, former 
ABA president and a prominent 
Chicago practitioner. The Chief Jus- 
tice termed the study "very signifi- 
cant." This group will focus princi- 
pally on recent developments that 
are making an impact on the practice 
of law. The commission's report is 
expected to be presented to the 
ABA's house of delegates next 

The Chief Justice also cited a re- 
cent lecture by ALI member Daniel 
Meador, a University of Virginia law 
professor, who said, "The American 


legal scene is the most complicated 
in the world." Professor Meador was 
referring to the system as a whole, 
the Chief Justice added, not to the 
"acute developments of the past five 
years or more." 

With input from the ABA and the 
ALI as well as practicing lawyers 
and judges (state and federal), the 
upcoming ALI study of civil justice 
should be as significant as the ABA 
study of criminal justice standards 
and the 1976 Pound Conference. 

Also reflecting concern about the 
legal system is a 1986 book by the 
ABA Lawyers Conference Task 
Force entitled Defeating Delay — Devel- 
oping and Implementing a Court Delay 
Reduction Program. Chief Justice 
Burger's foreword to the volume 
commends the manual as an "exam- 
ple of the profession seeking to im- 
prove its work." I 

Judges Broderick, Peckham Testify Before House 
Subcommittee on Court-Annexed Arbitration Bill 

Two federal judges were among 
those testifying at a recent hearing 
on arbitration and the federal courts 
before the Subcommittee on Courts, 
Civil Liberties, and the Administra- 
tion of Justice of the Committee on 
the Judiciary of the House of Repre- 
sentatives. The hearing concerned 
the proposed Court-Annexed Arbi- 
tration Act of 1986 (H.R. 4341). 

Judge Raymond J. Broderick (E.D. 
Pa.) and Chief Judge Robert Peck- 
ham (N.D. Cal.) testified about the 
use of court-annexed arbitration in 
their respective districts. Chief Judge 
Peckham is the chairman of a task 
force appointed by Chief Judge 
James R. Browning of the Ninth Cir- 
cuit to study alternative dispute res- 
olution in that circuit. The statement 
of Judge Elmo B. Hunter (W.D. 
Mo.), chairman of the Committee on 
Court Administration of the Judicial 
Conference, was also read into the 
record at the hearing. 

Since 1978, the Eastern District of 
Pennsylvania and the Northern Dis- 
trict of California have operated pilot 
court-annexed arbitration programs. 

In addition to those districts, eight 
additional courts instituted arbitra- 
tion in a variety of forms between 
October of 1984 and January of 1986. 
H.R. 4341 would expressly authorize 
the existing ten programs and pro- 
vide for such programs in five addi- 
tional districts if the Judicial Confer- 
ence approves. 

Judges Broderick and Peckham 
noted that the programs in their re- 
spective districts differ substantially 
from each other. For example, the 
arbitration proceedings in the East- 
ern District of Pennsylvania take 
place in the courthouse, whereas 
those in the Northern District of 
California are conducted in a more 
informal setting; the Pennsylvania 
arbitration proceedings are con- 
ducted by a panel of three experi- 
enced lawyers, whereas the Califor- 
nia cases are heard by a single 

Existing programs have been op- 
erating without specific statutory au- 
thorization, although funds to oper- 
ate them have been appropriated by 
See ARBITRATION, page 12 



WALD, from page 1 

tration is, especially in this court. At 
the present time we are facing a seri- 
ous rise in our filings and the begin- 
nings of what could be a serious 
backlog problem. Therefore, I think 
that administering the court, making 
sure that we use our most important 
resource — which is judge time — 
wisely and efficiently, is critical. I 
am quite willing to and I intend to 
devote as much time as necessary to 
accomplish that goal. 

Everybody on the court probably 
would rather spend their time decid- 
ing substantive cases, but there is no 
question in my mind that running a 
court efficiently, keeping the other 
judges reasonably content with the 
way in which the court is being run, 
will over the long run be a valuable 
investment of my time. I've had 
some administrative experience in 
the government, and that has rein- 
forced my sense of how important 
administration is and that you have 
to spend time on it. 

Are you introducing any new pro- 
cedures, especially those that relate 
to processing cases? 

Actually, this is a very critical 
summer and upcoming year for us. 
Because of the upsurge in cases, we 
have had a judges' task force work- 
ing all spring on many new reforms 
in the way we schedule our cases. 
We are going to put those into oper- 
ation over the summer. It probably 
doesn't merit going into all of the 
details here .except to say that we are 
drawing quite a bit on the experi- 
ence of some of our sister circuits 
which have tried such things as the 
expedited or fast calendar, in which 
most of the cases do not need oral 
argument and dispositions can be 
done more quickly. A particular 
need in this circuit is for a special 
calendar for the complex administra- 
tive law cases, which take so much 
of our time. We are going to make 
sure that the same panel has those 
cases from the very beginning, so 
that they don't get fragmented be- 
tween motions panels and merits 
panels and so that panel can itself 

move the complex cases along at an 
appropriate rate and make all of the 
preliminary preargument decisions 
about them. 

We've also made quite a few 
changes in our staff counsel's office; 
we have had up to now what we call 
court law clerks, the rough equiva- 
lent of chambers law clerks, to han- 
dle motions. Now we are moving in 
the direction of having assistant staff 
counsel, who have had some experi- 
ence in practice and are willing to 
stay around for more than one year. 

judge Patricia M. Wald 

This is the pattern in most other cir- 
cuits. All of these changes are 
geared to enabling us to process as 
many more cases as we need to and 
as quickly as we want to, with the 
right amount of judge time that the 
cases deserve. I do emphasize, 
though, that we are not just in an 
automatic case-processing business 
to bring our numbers up. We still 
plan to give each case its due. But I 
think all of us have felt that there are 
quicker ways to do justice in some 
cases, and in fact our changes will 
allow us more time to spend on the 
cases which require more time. 

Do you have any screening proce- 
dures established for the circuit? 

Well, let me talk about CAMP a 
little bit and then about what we are 
looking to accomplish through 
computerization. We have had for 

many years, at least as long as V' 
been here, a form of CAMP — tl 
civil appeals management plan. Tl 
staff counsel would pick out tho 
cases that looked like they were g 
ing to be very complex and comp 
cated with many parties involv( 
and then get all the counsel togeth 
to see if the issues could 
simplified, and whether some of t 
briefs could be consolidated. In a 
dition, she would propose a forn 
for the oral arguments. The fact i 
mains, however, that she is only o 
person with one assistant. In th 
sense we have had a much smal 
staff counsel's office, certainly, th 
the Second Circuit and many of t 
other circuits. What we plan to do 
the future is to energize our st. 
counsel's operations and realloc; 
her time. We feel that with more ( 
perienced assistant staff counsel 
work on the motions and some 
the other duties, we will be able 
free up the staff counsel and her 
sistant to do a lot more by way 
early identification of the cases tl 
need to be managed. 

We're also going to begin, v( 
modestly, some experimentation 
the settlement area. We've do 
none of that. There has never be 
any attempt to settle cases at the i 
pellate level here. We are all aw. 
of the Second Circuit's very envia 
record in terms of the number 
cases that they have settled; in h 
we have had a member of their st 
down here to talk to us. Everybc 
thinks, however, that there may b 
big difference in the potential 
settlement in this circuit as oppos 
to the Second Circuit. Well over 
percent of our cases are governmi 
cases. I think the Second Circuit 1 
a lot more commercial cases — f 
vate party cases. That doesn't m« 
that there isn't some potential 
settlement in our cases, but we \ 
have to work slowly and find ( 
just what the potential is bef( 
using any substantial amount of 
sources in these Gramm-Rudm 

As far as computerization go 

we have a new circuit executive who 
does have background in computer- 
ization. Given Gramm-Rudman and 
given the Administrative Office's 
own program specs for computeriza- 
tion, again our money will be lim- 
ited; we are going to do the best we 
can with our resources. 

How are the panels assigned in 
your court? 

The panels are assigned without 
any participation by any of the 
judges, including the chief judge. 


ences on very important points, I be- 
lieve that a heartfelt dissent serves a 
positive function, not only in ex- 
pressing the dissenter's view to the 
bar, to one's colleagues, possibly to 
the Supreme Court, and to commen- 
tators in the field. But even more im- 
portant a dissent usually has the ef- 
fect of making the majority think 
twice. The majority, in light of the 
dissent, sometimes moderates its 
own opinion and sometimes goes to 
a second deeper level of thinking 

"In a period when the court does have quite strong 
differences on very important points, I believe that a 
heartfelt dissent serves a positive function " 

We try hard for complete random- 
ization, so that there will be no in- 
ference that particular judges have 
been assigned to particular cases. 
The chief judge, as it is now, does 
not participate in any of the assign- 
ment of judges except in three-judge 
courts, and then he has a seriatim 
list that he goes by. 1 think that's the 
right thing to do. I was a lawyer in 
this circuit and 1 know how con- 
:erned we were that particular 
udges would not be automatically 
Jssigned to particular types of cases. 

think it is very important — 
especially in a court that is made up 
)f judges with varied backgrounds, 
deologies, and leanings— to make 
iure that nobody thinks that the 
hief judge or any other judge is 
ible to handpick cases. As far as I'm 
oncemed, the randomization proce- 
lure works well. 

Your dissents record some strong 
eelings on certain issues. Do you 
eel it important that this emphasis 
e recorded for the benefit of the 
ar and parties to the litigation? 

I couldn't imagine writing a dis- 
ent if 1 didn't feel strongly about it, 
nd 1 don't think that my dissents 
re any more strongly worded than 
lost of my brethren's or my sister's 
n the court. 1 think dissents are im- 
ortant, though one shouldn't be 
rofligate about writing them at the 
rop of a hat. In a period when the 
Jurt does have quite strong differ- 

when it has to answer the issues 
raised by the dissent. So if one 
keeps dissents on a civil level, they 
can serve a constructive purpose. 
Dissents make sure that all the is- 
sues have been gotten out on the ta- 
ble. I know in my own case if 1 antic- 
ipate a dissent, I pay extraordinary 
care to the rationale of the majority 
opinion I am writing. Sometimes 
points that slip by if you don't have 
any opposition will surface and get 
resolved if you have somebody 
watching over your shoulder, ready 
to point out every possible error. 

about conflicting opinions of fed- 
eral courts (including the Supreme 
Court) on the liability of govern- 
ment decision makers, especially 
over the past 25 years. Has anything 
made you change your views? 

Well, 1 don't think we have yet 
settled for all time the state of indi- 
vidual or official liability. As 1 
pointed out in a law review article, it 
is a very thorny problem. Nobody 
wants to take away accountability; at 
the same time, nobody wants to chill 
government officials' capability to 
make on-the-spot decisions for fear 
that they'll have to take out mort- 
gages on their homes in order to pay 
=ii personal liability awards. When I 

was in the government I worked 
hard but unsuccessfully on a 
bill— and 1 still think it is an excel- 
lent idea— which would extend the 
Federal Tort Claims Act to waive 
sovereign immunity for the so-called 
constitutional torts for which most 
individual government ofticials are 
now sued individually, the 
§ 1983-type actions. That would 
serve as a middle ground between 
making sure there were some ade- 
quate remedies for victim wrongs, 
yet not penalizing officials who 
make mistakes by threatening them 

"... I think after a year on the court you probably know 
the Administrative Procedure Act by heart." 

Sometimes a dissent ultimately 
comes out a majority opinion. 

I've seen that happen often in 
panels. I have also seen it happen in 
en bancs. Then there is also the old 
technique of writing what's been 
called the "invitational dissent" to 
get the attention of the Supreme 
Court, something which has gone 
on for decades and decades. The 
judge that I clerked for, Jerome 
Frank of the Second Circuit, was a 
famous dissenter; he was very open 
about the so-called invitational dis- 
sent, often beginning his dissent 
with a phrase like, "Even if I haven't 
won my brethren . . . . " 

You have expressed concern 

with economic ruin. It would also 
provide the courts with a better at- 
mosphere in which to make liability 
decisions. We have had very few 
verdicts against individual govern- 
ment officials where they had to pay 
out of their own pockets. You can 
count the number on one hand. The 
courts really don't like to penalize an 
individual government employee 
that way unless they absolutely have 
to. We could make our decisions 
about the rights and wrongs of gov- 
ernment conduct in a less pressured 
way if we didn't have to worry 
about bringing personal economic 
ruin on people. This is one area 
where the solution may have to be 
See WALD, page 8 



WALD, from page 7 
legislative. I also point out that part 
of the bill that I worked on did have 
an alternate mechanism for 
disciplining administrators who 
were found to have violated some- 
body's conshtutional rights, so they 
were not going to get off scot free. 
Right now the debate is being 
played out under the rubric of the 
ancient doctrine of immunity, and I 
think that is probably too heavy a 
burden for that doctrine to bear. 
That is why I'd hke to see the Fed- 
eral Tort Claims Act amended. 

As chief judge, you will have to 
handle initially any complaints 
filed against judges on the Court of 
Appeals for the D.C. Circuit. 

Well, I've been on the court before 
and since passage of the Judicial 
Conduct and Disability Act of 1980, 
the act that sets up procedures for 
processing complaints against 
judges. I am aware that the chief 
judge is the gatekeeper. Some of 
these complaints have gone on to 
committees for consideration by the 
judicial council. I think it's probably 
one of the least pleasant aspects of 
the job, but a necessary one. The 
present chief judge, Spottswood 
Robinson, has performed admirably, 
and I can only hope to follow in his 

You recently wrote an article in 
which you pointed out that differ- 
ent judges play different roles: 
"loner, inveterate disagreer, almost 
automatic agreer, or a conciliator 
able to influence rationales or even 
results by negotiations." What is 
your role? 

It has varied from case to case and 
from time to time. There are eras on 
the court when you are in sync with 
the majority of the court, and then 
personnel changes come about 
among the judges and you may find 
yourself more frequently in the mi- 
nority. I suppose that any judge 
who spends any considerable 
amount of time on a court runs into 
that. One aims in a period of sharp 
ideological differences among the 
judges to try to find the common 

ground in as many cases as possible. 
I think at this particular time the role 
of conciliator— if you can conciliate 
your own conscience — is an extra 
important one. On the other hand, 
no one looking at my record would 
say that I am an inveterate agreer, 
and I hope that they don't think I 
am an inveterate disagreer. A quick 
look at the statistics, I think, would 
indicate that I don't dissent that 
much more frequently than most of 
my colleagues. On the other hand, 
there are some of my colleagues 
who hardly dissent at all, and I'm 
certainly not in that group. As law 
gets more and more prolific, and 
there are more and more decisions 
out there, and the difficulty of mak- 
ing decisions consistent becomes 
greater, we all strive to find some- 
thing that will hold the court to- 
gether. On a practical level we sim- 
ply can't afford to have more than a 
certain number of en bancs a year. 
We simply cannot accommodate 
them in our schedule, and so in im- 
portant cases it is generally more 
profitable to try to find a common 
ground on the panel level rather 
than have to go on to the en banc 

The Federal Judicial Workload 
Statistics for the year ending Sept. 
30, 1985, show that the D.C. Circuit 
had almost a 41 percent increase in 
filings, the highest increase in the 
country. To what do you attribute 
the sudden increase, which brought 
an attendant decrease in termina- 

Well, we've asked ourselves that 
question again and again, and inter- 
estingly enough during the year in 
which we had the greatest upsurge 
it was across the board, not concen- 
trated in any one area. Now, agency 
cases, as you know, account for the 
largest proportion of our cases, and 
we did have a disproportionate in- 
crease in them. But we also had an 
increase in U.S. civil, private civil, 
and even some in criminal. Now this 
year, so far, our statistics show a 
slight decline, something around 11 
percent. On the other hand, the 

prior year left us with a great 
amount of cases to be disposed of. 
We also have had some increase in 
our terminations. That's encourag- 
ing, especially since we now have 
See WALD, page 9 

Positions Available 

Director of Continuing Educa- 
tion and Training, Federal Judicial 
Center. Salary to $68,700, com- 
mensurate with education and ex- 
perience. Civil service status is not 
required. Responsible for devel- 
oping and managing a variety of 
education and training programs 
for all federal court personnel, in- 
cluding circuit judges, district 
judges, bankruptcy judges, magis- 
trates, clerks of court, librarians, 
appellate staff attorneys, probation 
officers, and federal public defend- 

Candidates should have law de- 
grees and excellent writing and or- 
ganizational skills. Demonstrated 
professional experience in devel- 
oping and implementing contin- 
uing education and training 
programs — particularly experience 
with education programs for law- 
yers, judges, or judicial person- 
nel — and demonstrated ability to 
manage a professional staff are all 
highly desirable. Send resume or 
government application form to 
Personnel Officer (Announcement 
No. 86-008), Federal Judicial Cen- 
ter, 1520 H St., N.W., Washing- 
ton, DC 20005. Applications must 
be received by July 15, 1986. How- 
ever, the position will remain open 
until filled. 

Chief Deputy Clerk, U.S. Court 
of Appeals for the Eleventh Cir- 
cuit. Salary to $52,262, depending 
upon experience and education. 
Minimum requirements six years' 
progressively responsible manage- 
rial or administrative experience; 
bachelor's, postgraduate, or law 
degrees desirable. Send resume 
with cover letter highlighting rele- 
vant experience by Aug. 11 to 
Miguel J. Cortez, Clerk, 50 Spring 
Street, S.W., Atlanta, GA 

WALD, from page 8 

two \acancies on the bench, so if we 
have two more bodies by this time 
next year, we ought to be able to do 
considerably better on that. In the 
first couple of years of this adminis- 
tration our agency cases dropped 
precipitously — regulations were not 
coming out as fast, some agency 
spots had not been filled, so that the 
backlog was forming at the agency 
level rather than ours. Once those 
got filled and the agencies processed 
their own cases, they started pour- 
ing in to us. Still, overall over a 
10-year period, or a 5-year period, 
even though we have these roller 
coaster things from year to year, 
there's no question that the filings 
have gone up. I think that's the 
thing we are trying to deal with 
now, the fact that the caseload is not 
going to go down much from what it 
IS now. I doubt that we will have an 
ncrease in judicial resources, so 
hat's why we're trying to use our 
udge time in the best way possible. 

Statistics for the same time period 
ihow that your court received new 
ilings totaling 1,428 cases, 50 per- 
:ent of which involved administra- 
ive law cases. Are there special 
)roblems involved with administra- 
ive law cases, or does this high per- 
entage mean the members of your 
ourt develop an expertise which 
nakes it easier? 

Let me go back to the first part of 
'our question. Administrative law 
:ases are the bread and butter of this 
ircuit, and nobody comes on to this 
ircuit without knowing that's what 
hey are going to get. Administrative 
aw cases are not, however, fungi- 
ble. We have some that are relatively 
imple, and they can be turned out 
elatively fast (although they tend to 
'e more complicated than private 
ivil actions). We have some agency 
ases that are incredibly compli- 
ated, that have 200 different parties 
ppealing from a major regulation 
nd thousands of pages of appen- 
ices. Achially, I found that the is- 
ues, the legal issues, in administra- 
ve law are not more complicated. 


they are in fact less complicated than 
in some other fields of law. What is 
complicated is wading through the 
evidence that goes to support the 
regulations or the procedures that 
went on down below at the agency 
level, or understanding the basic 
transaction or the subject matter that 
the agency is dealing with in order 
to be able to evaluate whether what 
the agency has done is rational and 
not arbitrary and capricious. Those 
are the things that take most of the 
time. As far as experience in admin- 
istrative law is concerned, I think af- 
ter a year on the court you probably 
know the Administrative Procedure 
Act by heart. You probably know all 
the major precedents in the adminis- 
trative law field. In that sense, you 

"[W]e may have to be less 
tolerant of the delay- 
oriented, frivolous cases/" 

know the analytical framework, but 
I don't think any number of years on 
the court will prepare you for the 
wide variety of scientific and other 
subject matters which you have to 
evaluate in terms of those issues. I 
mean, one day you may get a com- 
plicated gas and oil case, the next 
day a Medicare regulation, the next 
day a labor problem; so that there is 
always something new around the 
corner. I don't think one ever can 
say, "Oh, well, this is just another 
administrative law case." Actually 
most people outside would say, 
"Oh, isn't that too bad you have to 
spend all this time with this boring 
administrative law case." They are 
not boring. I have come to like the 
administrative law cases better than 
many of the more traditionally at- 
tractive constitutional law cases. The 
administrative law cases affect a lot 
of people. They are part of the life 
around us. They usually involve 
some very interesting areas that you 
can learn about that you wouldn't 
learn about otherwise. So I'm quite 
content with that being a major part 
of our workload. 

It's funny: The law clerks who 
come to the court are thrilled in the 
beginning with the notion that 
they'll get to work on a constitu- 
tional law case, and they are ap- 
palled at the notion they may have 
to work on Federal Energy Regula- 
tory Commission cases that year. By 
the end of the year, many of them 
say they really enjoyed the adminis- 
trative law cases and they were tor- 
mented, as indeed they should be, 
by the constitutional law cases. 

Would you favor the establish- 
ment of a special court to handle 
only Social Security cases? 

I am probably not the best person 
to ask about that. We simply don't 
get that many of them in this circuit. 
The occasional ones we get don't 
give us the feeling of being over- 
whelmed. I will generalize, though, 
about the administrative law cases of 
which we do get many more than 
other circuits. There are many stat- 
utes which have only the D.C. Cir- 
cuit as the forum of review. I have 
heard and read about proposals to 
establish administrative law courts, 
environmental courts, and other 
special courts. Generally, I have not 
been in favor of those. I have 
thought that with respect to the im- 
portant administrative law appeals 
that we get — in the environmental 
field, even from the Federal Energy 
Regulatory Commission — that it 
was a very healthy thing to have 
them reviewed by a generalist court. 
Having to make your case to 
nonspecialists means that the agen- 
cies have to write their rationales 
and make their decisions with the 
expectation that they can be ex- 
plained adequately to and convince 
a court of intelligent generalists. 
That requires the agencies to think 
about their rationales more carefully 
and not use too much jargon. I have 
generally been wary of proliferation 
of specialized courts. 

I am afraid of the balkanization of 
administrative law with speciaHzed 
courts. I think there should continue 
to be some unifying principles of 

See WALD, page 10 



WALD, from page 9 

administrative law. 

It has been said that the volume 
of motions practice in the courts of 
appeals has gone up, that it is even 
a potential problem. Is this true? 

Our motions practice did go up si- 
multaneously with the upsurge of 
filings. As best we can analyze it, a 
couple of things happened. One, we 
have had a dichotomy between the 
way motions are processed and the 
way merits cases are processed. 
Judges sat on motions for two 
months, and with the help of the 
court law clerks and the staff coun- 
sel a motions conference was held 
every week and 20 to 30 motions 
were decided. Meanwhile, the mer- 
its cases were going along on a dif- 
ferent track with different panels. 
We found that the longer a case of 
any consequence or of any complex- 
ity stayed on our docket, the more 
motions it tended to generate. In 
other words, if it was there for a 
year, it tended to spawn a flurry of 
motions. Lawyers, I guess, become 
frustrated with waiting and say, 
"Let's file a motion to dismiss; let's 
file this, or that." So we hope that as 
we work to process the merits cases 
more expeditiously, we will see a 
downgrade in the number of mo- 
tions that those cases are generating 
along the route before disposition. 

The second thing relates to some- 
thing I mentioned earher. By taking 
our most complex cases and putting 
them on a special track, the same 
panel will sit on the case from the 
beginning to the end, including all 
of the motions as well as the final 
merits. That system, I think, will 
produce two advantages. One, law- 
yers will be more reluctant to file 
marginally useful motions when 
they know that the same panel will 
look at all of them as well as evalu- 
ate the case at the merits level. Sec- 
ondly, we will have less confusion 
and inconsistency on the outcomes. 
\ have seen some cases — lamentable, 
but they have been there — where a 
motions panel has done one thing 
that has sent the wrong signal to the 

litigants, who have then been sur- 
prised or dismayed, as the case may 
be, by what the merits panel did; we 
have had possible inconsistencies 
that lead to confusion as to the law 
of the case, as to what is happening, 
and as to scheduling because two 
different panels — or maybe three or 
four, depending on the number of 
motions — were sitting on the same 
case. By keeping one panel with that 
case all the way through, I think we 
can eliminate some of that. Also, 
generally trying to bring the argu- 
ment on the merits of the case closer 
to the date of filing of the appeal, we 
will leave less time in there for these 

"My main goal is to be an 
efficient chief judge " 

Have you used rule 11 to impose 
sanctions very often in the D.C. 

In the last year this court, some- 
what belatedly, has begun to impose 
sanctions on frivolous appeals by as- 
sessing the attorneys' costs and the 
costs of the appeals to the other 
party. In the last six months I think 
we've had six to eight of them. That 
may not sound like much, but it is a 
giant step for us. Our judges feel 
somewhat overwhelmed by the 
numbers of cases we are being hit 
with and are recognizing that if we 
are to take care of the important 
cases we may have to be less toler- 
ant of the delay-oriented, frivolous 
cases. Some of our opinions dis- 
cussing the bad effects of frivolous 
pleadings and assessing costs have 
been very strongly worded, so that 
if those counsel intend to practice 
extensively in our court in the fu- 
ture, they had best think long and 
hard before filing their next dubious 
brief or motion. 

Because of Gramm-Rudman cuts, 
most of the circuits are making 
many changes. What has the D.C. 
Circuit done? 

Gramm-Rudman has hit us hard, 

along with most of the other circuits. 

We have submitted our proposals 

for taking the cuts to the Judicial 
Conference committee. I think the 
timing of Gramm-Rudman has been 
particularly unfortunate for us in a 
couple of ways. One, we are at a 
juncture right now where we want 
to do some new things; we need to 
do some new things like computer- 
ization because of our rising backlog. 
Some other circuits, perhaps more 
foresightedly than we, asked for ex- 
tra staff and special programs years 
ago when funds were more avail- 
able. Now, just when we really want 
and need some infusion of new pro- 
grams, the ceilings have been 
imposed. Nonetheless, we are deter- 
mined to move ahead as best we 
can. I understand the theory of 
Gramm-Rudman — that everybody 
takes the same cut — but it is ironic 
that the judiciary will have to absorb 
cuts out of such a small budget. You 
can go just so far in terms of no new 
library books or no more travel al- 
lowance or no coffee and doughnuts 
for the jurors. But you hit that bot- 
tom very soon, and then you are 
into personnel. Most of us do not 
feel that we are overstaffed by any 
means, quite to the contrary. The 
large agencies have much more to 
cut from before they have to hit at 
the core of their functions. 

To what extent do you involve 
your law clerks in your work? 

Law clerks are extremely valuable 
because of the sounding board role 
that they play for judges. In a busy 
court your colleagues just do not 
have hme to go into the details ol 
opinion writing with you. In othei 
words, we hear the case, we have an 
initial conference, and we tell oui 
colleagues our reasons, and then we 
go off and one judge writes the 
opinion. The other judges are sc 
busy that you don't walk down the 
hall and start talking with one ol 
your colleagues about how you art 
going to word this sentence or elab- 
orate a point. They are busy writing 
their own opinions. Yet, very offer 
when you start to write an opinior 
you find it is a minefield, and all 

See WALD, page 1 



WALD, from page 10 

sorts of new problems emerge that 
simply didn't surface at the level of 
oral argument or in your conference 
with your colleagues. And it is there 
that the law clerks, aside from the 
research and the checking and 
sometimes the drafting that they do, 
are so valuable. They have to listen 
to you. They have to debate with 
you, and if they are good law clerks 
they will tell you when they think 
you are right and when they think 
you are wrong; you will get the ben- 
efit of their reactions to your ideas. 
Now it is possible to become overly 
dependent on them; all of us are 
cognizant of that, although the fact 
that we only have them for one year 
at a time helps to counter the de- 
pendency danger. I think it was 
Wade McCree that said judges 
should always remember, in relation 
to their law clerks, the old biblical 
statement that "Methuselah leaned 
on his staff and died." When all is 
said and done, however, there is no 
judge in the world that can actually 
read every page of every record, 
check every footnote, all by himself 
or herself without help. We simply 
have to be selective in what requires 
our personal involvement and what 
we are able to delegate. 

Do you select from certain 

No, I don't. Over the last seven 
years I must have selected from a 
dozen schools. There is no question 
that sometimes when you have had 
very good experience with one 
school, you tend to give weight to 
the recommendations of particular 
professors who have sent you very 
good people, but I always try to 
spread it around. In any one year I 
wouldn't want to have more than 
one or at the most two from the 
same law school because there is a 
nsk of getting a repeat of the same 
response. Different orientations and 
insights on the same subject matter 
often come from law students who 
have gone to different schools and 
have been exposed to different pro- 

fessors and philosophies. 

I have had clerks from Yale, 
Harvard, Columbia, New York Uni- 
versity, Northwestern, Wisconsin, 
George Washington, Georgetown, 
Stanford, and Michigan. 

Only one woman has previously 
served as a chief judge of a federal 
circuit court, and then for only a lit- 
tle over four months, so you are 
making federal court history. 
Would you like to comment? [Judge 
Florence E. Allen (1884-1966) served 
on the Sixth Circuit from April 1934 
to October 1959. She was chief 




John E. Conway, U.S. District 

Judge, D.N.M., May 14 
Edwin M. Kosik, U.S. District Judge, 

M.D. Pa., May 14 
William D. Stiehl, U.S. District 

Judge, S.D. 111., May 14 
D. Lowell Jensen, U.S. District 

Judge, N.D. Cal., June 2 
William W. Wilkins, Jr., U.S. Circuit 

Judge, 4th Cir., June 3 
Karen L. Henderson, U.S. District 

Judge, D.S.C., June 3 
Charles R. Simpson 111, U.S. District 

Judge, W.D. Ky., June 6 
William H. Rehnquist, Chief Justice 

of the United States, June 20 
Antonin Scalia, Associate Justice, 

Supreme Court of the U.S., 

June 24 


Andrew J. Kleinfeld, U.S. District 

Judge, D. Alaska, May 14 
Alan E. Norris, U.S. Circuit Judge, 

6th Cir., June 6 
John G. Davies, U.S. District Judge, 

CD. Cal., June 6 
Patricia C. Fawsett, U.S. District 

Judge, M.D. Fla., June 6 
David Hittner, U.S. District Judge, 

S.D. Texas, June 6 
Alfred J. Lechner, Jr., U.S. District 

Judge, D.N.J., June 6 
Nicholas Tsoucalas, Judge, Court of 

International Trade, June 6 

judge of the circuit from Sept. 17, 
1958, until Feb. 5, 1959. Subsequent 
amendments to title 28, United 
States Code, require that a chief 
judge relinquish a chief judgeship 
upon attaining the age of 70.] 

Only recently 1 learned 1 will not 
be the first woman chief judge of a 
circuit; Florence Allen in the Sixth 
Circuit held that honor back in 1959. 
1 read a book about Judge Allen that 
was quite interesting. Her period as 
chief judge came at the tail end of 25 
years of serving on the Sixth Circuit, 
See WALD, page 12 

William W. Wilkins, Jr., U.S. Circuit 

Judge, 4th Cir., June 13 
Stephen F. Williams, U.S. Circuit 

Judge, D.C. Cir., June 13 
John E. Conway, U.S. District 

Judge, D.N.M., June 13 
Karen L. Henderson, U.S. District 

Judge, D.S.C., June 13 
Edwin M. Kosik, U.S. District Judge, 

M.D. Pa., June 13 
William D. Stiehl, U.S. District 

Judge, S.D. 111., June 13 
Douglas P. Woodlock, U.S. District 

Judge, D. Mass., June 13 


Danny J. Boggs, U.S. Circuit Judge, 

6th Cir., Mar. 27 
J. Daniel Mahoney, U.S. Circuit 

Judge, 2nd Cir., Apr. 29 
Kenneth L. Ryskamp, U.S. District 

Judge, S.D. Fla., May 2 

Senior Status 

J. Skelly Wright, U.S. Circuit Judge, 

D.C. Cir., June 1 
Robert Boochever, U.S. Circuit 

Judge, 9th Cir., June 10 
Leroy J. Contie, Jr., U.S. Circuit 

Judge, 6th Cir., June 30 
Leonard I. Garth, U.S. Circuit 

Judge, 3rd Cir., June 30 
Frank A. Kaufman, U.S. District 

Judge, D. Md., June 16 


Warren E. Burger, Chief Justice of 
the United States, July 10, or as 
soon thereafter as a successor is 



WALD, from page 11 

from 1934 to 1959, and it was more a 
capping of her career than I perceive 
my job will be. Right now in this 
court we are undergoing a transition 
from one generation of judges to an- 
other. In seven years 1 have as- 
sumed the senior position on a court 
of twelve judges. That kind of per- 
sonnel turnover brought about a lot 
of changes in the way the court op- 

meet her glance head on. They went 
out to lunch very frequently to a 
men-only club without taking her. 
She wasn't assigned certain kinds of 
cases. None of that would happen 
now. Whatever lingering discrimina- 
tion there may be in court systems 
against women, there is no question 
that on our court none of the things 
that happened to Florence Allen 
would happen, nor would we let 
them happen. 

"After a while people should forget that I am a woman, 
but I should never forget it." 

erates. Also, because of the caseflow 
problems we have talked about, 
we'll be doing things a lot differ- 
ently, trying out a lot of new sys- 
tems. We also have a new staff 
counsel and a new circuit executive, 
so in a sense the court really is en- 
tering a new era. 

Back to Judge Allen for a minute: 
She had been a hard fighter for the 
causes she believed in. At one point 
she made a statement that she didn't 
think that you could have the kind 
of active career that she had had in 
the law and be married and have 
children; I think that was the feeling 
of those times — that you had to 
make a choice. Obviously, my situa- 
tion with five children is very differ- 
ent, and I think that speaks well for 
the progress that women have made 
in at least getting rid of the stereo- 
type that you have to choose forever 
between career and marriage or 
motherhood. Although I don't sug- 
gest that there are not periods in a 
woman's life when you do have to 
make choices, or that those choices 
are easy, I don't think you have to 
make a permanent choice one way 
or the other anymore. 

The other thing that was interest- 
ing in Florence Allen's biography 
was her very discrete anecdotes 
about the reaction to her coming on 
the court. She said that she heard 
that one of the judges upon learning 
of her appointment took to bed for 
two days. Other judges wouldn't 

1 believe that being a woman chief 
judge has some significance. It's im- 
portant in one sense to get it over 
with, so that if 1 do well, nobody 
will raise an eyebrow the next time. 
My main goal is to be an efficient 
chief judge, to make life a little 
easier for the other judges so that 
they can worry about judging and 
not about all the things that are go- 
ing wrong around the courthouse. 
After a while people should forget 
that I am a woman, but 1 should 
never forget it. There are still areas 
in which women, because of their 

past experience, should always try 
hard to make sure that some of the 
things that happened to them won't 
happen to other women. 

At the time Judge Allen was chief 
judge, there was no requirement 
that the chief judge relinquish the 
position upon becoming 70 years of 

Yes. And when she left the chief 
judgeship she retired; she did not 
continue to serve. But make no mis- 
take, she was tough. As Chief Judge 
Lively said in his interview in The 
Third Branch [June 1986], she was a 
formidable woman. On the other 
hand, reading her biography and 
looking over her articles — I noted 
she was also a very prolific writer; 
she wrote 16 or 17 law review arti- 
cles during the time she was on the 
court, many about women — she was 
very cognizant of the need to push 
women ahead in the profession. She 
wrote a lot of her articles in what 
was then the Womaii's Law Journal. 
She made a lot of speeches, too, 
many to the National Association of 
Women Lawyers. She stayed very 
strong in her commitments to 
women in the bar right up to the 
end. ^ 

ARBITRATION, from page 5 

Congress. As Judge Hunter's state- 
ment noted, "Back in 1977, while the 
general concepts of court-annexed 
arbitration were known, no federal 
court really had experience with the 
specifics of how an actual program 
should be operated. Both the legisla- 
tive and judicial branches then 
needed to know more about how 
such programs would work before 
declaring them fully acceptable, 
incorporating them into standard 
court processes or mandating them 
by law." 

Judges Peckham and Broderick ex- 
pressed the view that the courts' in- 
herent authority together with rule 
16 of the Federal Rules of Civil Pro- 
cedure constitute sufficient basis for 
the operation of such programs by 
the courts. They noted that the FJC 

is engaged in a study of the court- 
annexed arbitration programs that 
have been operated to date. 

In March, the Judicial Conference, 
upon the approval of the Committee 
on Court Administration, approved 
draft legislation that would provide 
statutory authorization for the pres- 
ent experimental program. That 
draft legislation was presented to 
the subcommittee at the hearing. ■ 

FEES, from page 3 

for nonpayment. Applying Pulliam, 
Judge Wangelin held that the de- 
fendant was liable for attorneys' fees 
and costs, but reduced the sum re- 
quested by the plaintiff from more 
than $8,000 to $460. 

An appeal to the Eighth Circuit 
Court of Appeals has been filed. ■ 

BURGER, from page 2 

Chief Judge Pierce Lively (6th Cir.) 

The dose association on the Judi- 
cial Conference has given the mem- 
bers of that body an opportunity to 
see a remarkable judge at work. As a 
member of the Conference, I have 
been amazed at Chief Justice 
Burger's capacity to deal with so 
many problems and to deal with 
them so well. 

Chief Judge Walter J. Cummings 
[7th Cir.) 

The Chief Justice and I began a 
ivarm association 33 years ago in the 
[ustice Department. His close ad- 
Tiinistration of the federal courts is 
he shining hallmark of his tenure, 
-lis friendly cooperation with the cir- 
ruit chiefs has won reciprocal admi- 
ation. His unexpected departure 
eaves us with a personal loss. 

Ihief Judge Donald P. Lay (8th 

Chief Justice Burger deserves a 
ribute from all Americans for his 
;reat service to the Nation. I have 
lever known anyone who thrives on 
ndefatigable energy as he does. The 
k^ork of a Supreme Court justice by 
Jself requires a full-time effort, yet 
he Chief Justice has been able to 
arry on this work and accomplish 
lanv other extracurricular tasks as 

:hief Judge James R. Browning (9th 

One thing is clear, even now, 
bout history's assessment of Chief 
jstice Burger: He will surely be rec- 
gnized as one of our greatest Chief 
istices in terms of judicial adminis- 

hief Judge William J. HoUoway, 
•• (10th Cir.) 

Chief Justice Burger has given the 
lation's judiciary inspiring leader- 
lip. His boundless energy, his ded- 
ation to judicial reforms, and his 
intributions to the improvement of 
ate and federal court relations have 
gnificantly advanced our judicial 
►'Stem. We will long benefit from 
»e momentum of his public service. 

Chief Judge John Godbold (11th 

The Chief Justice gave great force 
and vitality to the goal that the 
courts perform their functions well. 
His broad concern embraced all 
courts, federal and state, and the 
judges who sit on them and the law- 
yers who practice before them. The 
Chief's vision was not limited to to- 
day but looked to the future as well. 
Our country and especially the judi- 
ciary will miss his strong voice. 

Chief Judge Howard T. Markey 
(Fed. Cir.) 

The Chief Justice will be remem- 
bered as a far-thinking administrator 
who presided over a massive expan- 
sion in all segments of the third 
branch and a simultaneous trebling 
of its workload. That the judiciary 
maintained its efficiency and stabil- 
ity throughout that growth period is 
to the credit of all but in large part 
reflects the Chief Justice's total dedi- 
cation to the tasks that confronted 

Tributes from Past and 
Present FJC Board Members 

Judge Frank Coffin (1st Cir.) 

I feel that we are losing the serv- 
ices of a unique institutional leader 
as well as a constant friend and sup- 
porter. Chief Justice Burger has pio- 
neered in seeking to improve the 
governance of the judiciary to reach 
out to the public in communicating 
the needs and responsibility of the 
judiciary, and to improve the morale 
of all judges, trial and appellate, 
state and federal. 

Judge Arlin M. Adams (3rd Cir.) 

It was with great regret that I 
learned of the Chief Justice's im- 
pending retirement. He has been, to 
my knowledge, the greatest admin- 
istrator the Supreme Court and the 
federal judiciary have known. In- 
deed, his genuine concern for the ju- 
risprudential, institutional, and per- 
sonal challenges faced by every 
American judge has been most 



Judge Cornelia Kennedy (6th Cir.) 

Chief Justice Burger, both by his 
tireless personal example and 
through his leadership, contributed 
enormously not only to the federal 
courts but also to state courts. His 
legacy is one of greater court effi- 
ciency and a sense of mission and es- 
prit de corps which continue to in- 
spire every judge. He has truly been 
a Chief Justice of the United States. 

Chief Judge Aubrey E. Robinson, 
Jr. (D.D.C.) 

The leadership of Chief Justice 
Warren Burger was an inspiration to 
all who have had the honor of 
serving on the Board of the Federal 
Judicial Center. His boundless en- 
ergy and deep commitment in work- 
ing with the Board and staff account 
for the success of the Center in 
meeting its responsibility of service 
to the federal judiciary. 

Judge Edward J. Devitt (D. Minn.) 

I hate to see the Chief Justice leave 
the court, but all in all I feel he did 
the right thing at the right time and 
for the right reason. The important 
work of the Bicentennial Commis- 
sion will be enhanced by his active 
leadership, just as have all our Na- 
tion's courts — state and federal. 
Chief Justice Burger served as a 
leader for all courts, not just the Su- 
preme Court, and his leadership will 
be missed. 

Chief Judge Howard C. Bratton 

History will surely record that 
Chief Justice Burger's contributions 
in the field of judicial administration 
are unequalled. It has been a high 
privilege to serve on the Board of 
the Federal Judicial Center with him. 
Under his guidance the Center has 
developed from infancy to maturity 
and has become a valuable resource 
for the federal judiciary. 

Judge William Sessions (W.D. Tex.) 

Chief Justice Burger's constant 
unselfish, inspirational, and extraor- 
dinary leadership of the bench and 
bar has left its indelible imprint on 
See BURGER, page 14 



SENTENCING, from page 4 

Will present prison capacity be the 
controlling factor in drafting the guide- 

No. Although present prison ca- 
pacity will not act as a primary con- 
straint on the formulation of sen- 
tencing guidelines, the commission 
is sensitive to the problem of prison 
overcrowding. The commission is 
working with the Bureau of Prisons 
to assess the impact sentencing un- 
der the proposed guidelines will 
have on prison facilities. Any formu- 
lation of responsible public policy 
must be weighed against all costs in- 
volved. As required by statute, alter- 
natives to incarceration are being ex- 
plored, and the commission is 
holding a public hearing on sentenc- 
ing options. As directed by Con- 
gress, the commission will make rec- 
ommendations concerning any 
needed expansion or change in the 
nature or capacity of prison facilities 
resulting from the guidelines (see 28 
U.S.C. § 994(g)). Similar considera- 
tion and evaluation are being given 
to the problem of probation work- 
load under the guidelines. 

Can payment of a fine or restitution be 
imposed as a condition of probation? 

Yes. The statute provides that a 
sentencing court may impose a vari- 

BURGER, from page 13 

the law and the institutions he 
touched during his tenure as a great 
and untiring Chief Justice. I was 
truly privileged to serve with him on 
the Board of the Federal Judicial 

Judge Walter E. Hoffman (E.D. Va.) 
As a former director and Board 
member of the Federal Judicial Cen- 
ter I have had many contacts with 
Chief Justice Burger. We are warm 
personal friends. If anyone has 
earned his retirement and the right 
to live a more relaxed life, it is the 
present Chief Justice. He will go 
down in history as the most out- 
standing administrator and leader of 
the judicial system in the United 
States. ■ 

ety of conditions on a sentence of 
probation (18 U.S.C. § 3563(b)). Pay- 
ment of fines and restitution to vic- 
tims are specifically included in this 
wide range of probationary condi- 
tions authorized by the statute (18 
U.S.C. § 3563(a)(2)). 

What type of sentence may be imposed 
pursuant to a revocation of probation? 

The statute provides that if a de- 
fendant violates a condition of pro- 
bation, the court may either con- 
tinue or extend the probationary 
period or it may revoke probation 
and impose any other sentence 
available at the time of the initial 
sentencing (18 U.S.C. § 3565(a)). The 
commission expects to issue guide- 
lines and/or policy statements re- 
garding resentencing after probation 

Can incarceration be imposed as a con- 
dition of probation? 

Yes. The statute provides that 
during the first year of probation, 
custody may be imposed as a condi- 
tion of probation for limited inter- 
vals of time (18 U.S.C. § 3563(b)). 
Congress did not carry forward the 
split sentences provided in 18 
U.S.C. § 3651, since, under the new 
statute, a period of incarceration can 
be imposed followed by a term of 
supervised release (18 U.S.C. 
§ 3583). S. Rep. No. 98-225, 98th 
Cong., 1st Sess., p. 98. 

Since parole will be abolished when the 
guidelines become effective, will there be 
any form of supervision over defendants 
after release from prison? 

Yes. In addition to a sentence of 
incarceration, the court may order a 
period of postrelease supervision by 
a probation officer according to 
specified conditions (18 U.S.C. 
§ 3624(e)). The commission expects 
to provide guidance concerning the 
appropriate use of supervised re- 
lease (28 U.S.C. § 994(a)). 

// a defendant violates a condition of 
supervised release, may incarceration be 
imposed as a sanction? 

If incarceration is to be ordered for 
a violation of a condition of super- 
vised release, the statute requires 
that it be done pursuant to the con- 

tempt power of the court (18 U.S.C. 

§ 3583(e)). 

Can incarceration and a fine be 
imposed in the alternative? 

No. The statute expressly pre- 
cludes such alternative sentencing 
(18 U.S.C. § 3572(e)). However, un- 
der certain circumstances, the failure 
to make bona fide efforts to pay a 
fine can result in resentencing to a 
term of imprisonment (18 U.S.C. 
§ 3614). 

Since sentences under the guidelines 
will be determinate, will a prisoner re- 
ceive credit for good behavior? 

Yes. A prisoner serving a term of 
imprisonment for more than a year 
shall receive 54 days' credit toward 
the service of his sentence each year, 
unless the Bureau of Prisons deter- 
mines that, during that year, the 
prisoner has not satisfactorily com- 
plied with institutional disciplinary 
regulations (18 U.S.C. § 3624(b)). 
Such credit vests when received and 
may not later be withdrawn. Id. 

This provision replaces a confus- 
ing array of statutes and administra- 
tive procedures concerning the de- 
termination of a prisoner's release 
date. Congress intended to intro- 
duce certainty into a prisoner's ex- 
pected release date by providing a 
uniform good-time credit and by 
eliminating artificially high sen- 
tences traditionally imposed to 
counterbalance early release under 
the parole system. S. Rep. No. 
98-225, 98th Cong., 1st Sess., pp. 

May a court modify a term of impris- 
onment after imposition? 

A term of imprisonment may be 
modified only under three circum- 
stances: (1) upon the motion of the 
director of the Bureau of Prisons, if 
the court finds that extraordinary 
and compelling reasons warrant re- 
duction and the requested reduction 
is consistent with applicable policy 
statements issued by the commis- 

See SENTENCING, page 15 

ENTENCING, from page 14 

ion; (2) to the limited extent ex- 
ressly permitted by statute or rule 
5 of the Federal Rules of Criminal 
rocedure to correct error or to rec- 
gnize postsentence cooperation; or 
5) where the defendant has been 
?ntenced under a guideline range 
ubsequently reduced by the com- 
lission, if such a reduction is con- 
stent with the commission's stated 
Dlicy (18 U.S.C. § 3582(c)). 

Will fines play a substantial role in 
e sentencing guidelines? 

Yes. The Sentencing Reform Act 
ramatically increases the fines that 
ay be imposed upon a convicted 
?rson or organization (18 U.S.C. 
3571). Under the new law, a con- 
cted person may be fined up to 
150,000 for a felony or a mis- 
?meanor resulting in the loss of hu- 
an life. For any other mis- 
■meanor, a person may be fined up 

525,000, and for an infraction, up 

$1,000. An organization may be 
»ed up to $500,000 for a felony or a 
isdemeanor resulting in the loss of 
iman hfe, $100,000 for any other 
isdemeanor, and $10,000 for an in- 
iction. These substantial increases 
ovide meaningful sentencing op- 
ms, which are being carefully con- 
lered by the commission. 
Under what circumstances may a 
Ige deviate from the guidelines? 
Although a judge is expected to 
itence within the guideline range, 
? statute provides for exceptions if 
gravating or mitigating circum- 
inces "not adequately taken into 
nsideration by the Sentencing 
mmission" are found to exist (18 
S.C. § 3553(b)). In such excep- 
nal cases, the judge must explain 

the record justifiable reasons for 
t following the guidelines (18 
5.C. § 3553(c)). The defendant can 
peal when sentences exceed the 
idelines (18 U.S.C. § 3742(a)). 
th the personal approval of the at- 
ney general or the solicitor gen- 
ii, the government can appeal 
len sentences fall below the 
idelines (18 U.S.C. § 3742(b)). 

CIRCUITS, from page 3 

ways in which the court of appeals 
conducts its business and to suggest 
improvements. Among the issues 
discussed were briefing, oral argu- 
ment, and published and unpub- 
lished opinions. The session on 
practice problems in the district 
courts touched on discovery dis- 
putes, methods of resolving other 
motions, the use of magistrates, ju- 
dicial involvement in settlement, 
and the conduct of trials. 

Other presentations during the 
conference included a talk by Judge 
Marvin E. Aspen (N.D. 111.) on "Inns 
of Court," a panel on "The Pros and 
Cons of a Nationwide United States 
Trustee System," and a panel on 
civil RICO issues. 

Chief Judge John C. Godbold 
called into session in Atlanta the 
fifth Eleventh Circuit judicial confer- 
ence, with 421 conferees attending. 
Justice Lewis Powell, circuit justice 
for the Eleventh Circuit, addressed 
the meeting and gave a report on 
some of the circuit's cases reviewed 
thus far during the Supreme Court's 
October 1985 term. He commended 
the judges of the circuit for their 
hard work and for what he called "a 
good record." Justice Harry Black- 
mun also spoke, outlining the work 
of the Supreme Court during this 
term, with emphasis on court mat- 
ters he felt were of most interest to 
the Eleventh Circuit judiciary. 

In his annual report on the busi- 
ness of the circuit. Chief Judge 
Godbold gave an explanation of sta- 
tistical charts on the workload of the 
circuit and led the conferees through 
a graphic description of both circuit 
and national caseloads. 

The Eleventh Circuit statistics are 
impressive. One chart, reflecting na- 
tional reports on caseloads, shows 
that the second greatest number of 
cases filed during calendar year 1985 
was filed in the Eleventh Circuit, 
and the judge pointed out that the 
circuit judges disposed of "all [this 
business] with only 12 active and 5 
senior judges." 

■ 15 


On the district court level, the 
charts for the calendar year 1985 
show that case determinations on 
the merits per active judge were the 
highest in the country — approx- 
imately 180 per judge— and that me- 
dian time for final disposition was 
reduced from 12.7 to 10.4 months. 

Chief Judge Godbold called spe- 
cial attention to two matters: First, 
currently there are more capital 
cases in the Eleventh Circuit than all 
the other circuits combined; and sec- 
ond, the work of the state-federal 
meetings has been enormously pro- 
ductive, especially the certification of 
state law questions by the high 
courts of the states. ■ 


July 9-10 Judicial Conference Com- 
mittee on Rules of Practice 
and Procedure 
July 9-11 Seminar for Training 
Coordinators of the First and 
Second Circuits 
July 9-12 Tenth Circuit Judicial 

July 11-13 Seminar for Training 
Coordinators of the Seventh 
July 14 Judicial Conference Advi- 
sory Committee on Codes of 
July 16-18 Seminar for Magistrates 
of the Sixth, Seventh, and 
Eighth Circuits 
July 21-23 Judicial Conference 
Committee on Judicial Ethics 
July 23-26 Eighth Circuit Judicial 

July 28-29 Judicial Conference 
Committee on Court Admin- 
July 28-29 Judicial Conference 
Committee on the Operation 
of the Jury System 
July 28-31 Orientation Seminar for 
New U.S. Probation and Pre- 
trial Services Officers 
July 31-Aug. 1 Judicial Conference 
Committee on the Adminis- 
tration of the Probation Sys- 


16 fi>iw _ .^^.^_,__^ ""~~^~"^~^~"^~^~" 



The publications listed below may be of interest 
to readers. Only those preceded by a checkmark are 
available from 'the Center. When ordering copies, 
please refer to the document's author and title or 
other description. Requests should be in writing, 
accompanied by a self-addressed, gummed mailing 
label, preferably franked (but do not send an enve- 
lope), and addressed to Federal Judicial Center, In- 
formation Services, 1520 H Street, N.W., Wash- 
ington, DC 20005. 

Baker, Thomas E. "Thinking About 
Federal Jurisdiction — Of Serpents and 
Swallows." 17 St. Mary's L.J. 239 (1986). 

Black, Elizabeth. Mr. Justice mid Mrs. 
Black: The Memoirs of Hii^o L. Black and 
Elizabeth Black. Random House, 1986. 

Breyer, Stephen. "Economists and 
Economic Regulations." 47 University of 
Pittsburgh L. Rev. 205 (1985). 

Bums, Arnold I. Address on the Con- 
stitution and its bicentennial at the Gi- 
braltar Forum, Buffalo, NY, May 2, 1986. 

"Construing the Constitution." Ad- 
dresses by William J. Brennan, Jr., John 
Paul Stevens, Edwin Meese III. 19 U.C. 
Davis L. Rev. 2, 15, 22 (1985). 

Day, David S. "Expert Discovery Un- 
der Federal Rule 26(b)(4): An Empirical 
Study in South Dakota." 31 South Dakota 
L. Rev. 40 (1985). 

Haar, Charles M., and Daniel Wm. 
Fessler. The Wrong Side of the Tracks. A 
Revolutionary Rediscovery of the Common 
Law Tradition of Fairness in the Struggle 
Against Inequality. Simon & Schuster, 

Henry, James F. "Alternative Dispute 
Resolution: Meeting the Legal Needs of 
the 1980's." 1 Ohio State /. on Dispute Res- 
olution 113 (1985). 

Hill, Alfred. "The Judicial Function in 
Choice of Law." 85 Columbia L. Rev. 1585 

Hoffman, Peter B., and James L. Beck. 
"Recidivism Among Released Federal 
Prisoners: Salient Factor Score and Five- 
Year Follow-Up." 12 Criminal justice & 
Behavior 501 (1985). 

Kaufman, Irving R. "Must Every Ap- 
peal Run the Gamut? The Civil Appeals 
Management Plan." 95 Yale L.J. 755 

Kaufman, Irving R. "Justice Unfunded 
Is Justice Undone." New York Times, May 
25, 1986, at E17. 

Kobylka, Joseph F. "The Court, Justice 
Blackmun, and Federalism: A Subtle 
Movement With Potentially Great Rami- 
fications." 19 Creighton L. Rev. 9 

t^Levin, A. Leo, and Deirdre Golash. 
"Alternative Dispute Resoluhon in Fed- 
eral District Courts." 37 University of 
Florida L. Rev. 29 (1985). 

Levine, David I. "Calculating Fees of 

Special Masters." 37 Hastings L.J. 141 

Lind, E. Allan, and Benjamin R. Fos- 
ter. "Alternative Dispute Resolution in 
the Federal Courts: Public and Private 
Options." 33 Federal Bar Neios & j. 127 

Robbins, Ira P. "Privatization of Cor- 
rections: Defining the Issues." 69 Judica- 
ture 324 (1986). 

Seron, Carroll. "Magistrates and the 
Work of Federal Courts: A New Division 
of Labor." 69 Judicature 353 (1986). 

Smith, Steven D. "Courts, Creativity, 
and the Duty to Decide a Case." 198f 
University of Illinois L. Rev. 573. 

Speed, James B., III. "Attorney's Fee; 
Awards in Federal Court: An Arkansas 
Study." 39 Arkansas L. Rev. 99 (1985). 

Spiegel, S. Arthur. "Summary Jur) 
Trials." 54 University of Cincinnati L. Rei' 
829 (1986). 

Sullivan, Noel E. "Recent Amend 
ments to the Federal Rules of Civil Pro 
cedure: An Overview and Words of Cau 
tion." 17 University of Toledo L. Rev. 81 

"Symposium: Gerrymandering anc 
the Courts." 33 U.C.L.A. L. Rev. 1-28: 

Twerski, Aaron D. "A Moderate anc 
Restrained Federal Product Liability Bill 
Targeting the Crisis Areas for Resolu 
tion." 18 University of Michigan J. of Lai 
Reform 575 (1985)." 





Vol. 18 No. 7 July 1986 

The Federal Judicial Center 
Dolley Madison House 
1520 H Street, N.W. 
Washington, DC 20005 

Official Business 

Postage and 

fees paid 

United States 



»0 , 3/5 



h^)ii^ liilii. 


AUGUST 1986 

VO Director L. Ralph Mecham Reviews 
lis First Year in the Federal Court System 

L. Ralph Mecham, a former university 
ce president, corporate official, and 
de to a U.S. senator, became the sixth 
rector of the Administrative Office 
wn the resignation of William E. Poky 
it year. Appointment to this office is 
' the Supreme Court. 
Mr. Mecham has earned degrees at the 
niversity of Utah (B.S.), George 
ashington University (J.D.), and 
arvard (M.P.A.). His educational 
ckground also includes congressional 
d graduate fellowships at Harvard. 
July 15 marked your first anniver- 
ry as director of the Administra- 
te Office of the U.S. Courts. Did 
»u experience any "surprises" after 
>u became involved in managing 
e business of the federal courts? 
Well, there were both surprises I 
und and surprises that just hap- 
ned. I guess the biggest surprise, 
d probably the one that has been 
3st demanding over this past year, 
IS been the whole matter of 
amm-Rudman-Hollings and what 
Kas done to the judiciary and what 
s been required as a result for the 

that, although I guess I should have 
been, having taught constitutional 
law and having some familiarity 
with the courts. Basically, 1 have 
never seen an organization where 
there is less hierarchy and more 

crosses. 1 have at least 1,000 bosses 

that 1 have to be responsive to, a tre- 

jSiendous amount of responsibility, 

■^''^and very little authority. 1 don't ob- 
ject to that. I realize the constitu- 
tional values of an independent judi- 
ciary, but it nonetheless makes for a 
very interesting and at times difficult 
See MECHAM, page 4 

L. Ralph Mecham 

AO. It has been a big headache. An 
example is the Executive Committee 
decision to suspend civil jury trials 
temporarily because to do otherwise 
would have meant we would have 
been in open violation of the 
Antideficiency Act. 

One of the interesting things that 1 
found was what I would call a flat 
versus hierarchical organization. I 
really hadn't been fully prepared for 

JC Completes Transfer of New AIMS to AO 

Automation in the federal courts 
ssed an important milestone on 
ly 1, when the Federal Judicial 
■nter and the Administrative Of- 
e completed the transfer of the 

Seminar Scheduled for 
New District Judges 

FJC Director A. Leo Levin has 
announced that the next seminar 
for newly appointed U.S. district 
court judges will be held Sept. 
22-27, 1986, at Dolley Madison 
House in Washington. 

A reception for the new judges 
and their families is scheduled for 
Sunday, Sept. 21, at 6 p.m., and a 
black tie dinner at the U.S. Su- 
preme Court for Thursday, Sept. 

New Appellate Information Manage- 
ment System (New AIMS) to the 
AO. The transfer marks the system's 
transition from developmental to op- 
erational status. 

New AIMS is an electronic dock- 
eting and case management system 
that eliminates the most burden- 
some paperwork of the offices of the 
clerks of the courts of appeals. It op- 
erates on computers located and op- 
erated in the courts themselves, thus 
removing the requirement of earlier 
automated systems for constant tele- 
phone connections between the 
courts and computers located in 
Washington, D.C. 

New AIMS was developed by the 
FJC in close cooperation with the 

See NEW AIMS, page 8 

Bicentennial Comm'n 
Praises Chief Justice 

The Commission on the Bicenten- 
nial of the Constitution, in a unani- 
mous resolution, has commended 
Chief Justice Burger for his "act of 
unsurpassed dedication and patriot- 
ism" in announcing his intention to 
devote his full efforts to his duties as 
chairman of the commission and re- 
tire as Chief Justice. The resolution 
was adopted at the commission's 
seventh meeting, held June 20 and 
21 in Washington. 

At the meeting, the commission 
concentrated on programs designed 
to educate the American public 
about the 200th anniversary of the 
writing of the Constitution. The 
commission heard several proposals 
from private, state-government, and 
federal agency representatives, all 
concerned with how their respective 
groups can contribute to the educa- 
tional goals of the commission. 
Eleven state bicentennial commis- 
sions (Connecticut, Hawaii, Iowa, 
Maine, Montana, New Jersey, New 
Mexico, Oklahoma, Vermont, Wis- 
consin, and Wyoming) were recog- 
nized, and 14 cities and counties 
were recognized as Bicentennial 
Communities. The commission also 
recognized officially a number of 
projects that involve conferences. 




Commission to Hold Regional Hearings in Fall 

This is one of a series of articles to 
keep federal judges and supporting per- 
sonnel informed about the Sentencing 
Commission's work. 

Pursuant to statute, the 
Sentencing Commission is to submit 
guidelines to Congress by April 






1987. In order to solicit the widest 
possible comment on its work, the 
commission plans to publish a tenta- 
tive working draft of the guidelines 
in the Federal Register in late Septem- 
ber. While not a complete or final 
document, the draft will be detailed 
enough to permit substantive dis- 
cussion of the approach the commis- 
sion has adopted. 

To help facilitate the free exchange 
of ideas on the guidelines, the com- 
mission is scheduling regional hear- 
ings across the country. The hearing 
dates and locations are Oct. 17, 
Chicago; Oct. 21, New York City; 
Oct. 29, Atlanta; Nov. 5, Denver; 
Nov. 18, San Francisco; Dec. 2-3, 
Washington, D.C. 

Based on the comment generated 
at these regional hearings and 
through written critiques of the draft 
guidelines, the commission will 
amend and refine the guidelines in 
order to present a final draft to Con- 
gress by April 1987. The commission 
solicits Third Branch readers' views 

^ TT7Z 


Published monthly by the Administrative Of- 
fice of the U.S. Courts and the Federal Judicial 
Center. Inquiries or changes of address 
should be directed to 1520 H Street, N.W., 
Washington, DC 20005. 


Alice L. O'Donnell, Director, Division of 
Inter-Judicial Affairs and Information Serv- 
ices, Federal Judicial Center. Peter G. 
McCabe, Assistant Director, Program Man- 
agement, Administrative Office of the U.S. 

now and at any point during the 
public comment period this fall. 

Congress recently sent the Presi- 
dent H.R. 4801, a bill making impor- 
tant technical amendments to the 
Sentencing Reform Act. The key 
provisions of H.R. 4801 make two 
modifications of the act's require- 
ment that the maximum term of im- 
prisonment in a range not exceed 
the minimum term by more than 25 
percent. This requirement caused 
problems with respect to the ranges 
imposing the longest terms of im- 
prisonment as well as the ranges im- 
posing the shortest terms. 

At the top end, the 25 percent lim- 
itation created difficulty because 
there was no way mathematically to 
compute the minimum term of im- 
prisonment in a range where the 
maximum term was life imprison- 
ment. H.R. 4801 alleviated this diffi- 

culty by providing that "if the mini 
mum term of the range is 30 years o 
more, the maximum may be lift 

An amendment made at the lov 
end of the imprisonment ranges wil 
affect an even larger number o 
cases. The problem caused by the 2 
percent limitation at the low eni 
was that the commission woul( 
have to create many narrow, imprac 
tical guideline prison ranges. For e> 
ample, if the guidelines provided fc 
a minimum sentence of 30 days 
then the maximum sentence coul 
only be 37.5 days. These range 
would unduly restrict the discretio 
of the sentencing judge. Congres 
responded to this problem by settin 
the maximum of a range at "th 
greater of 25 percent or 6 months 
more than the minimum. Thi 
means that if the guideline^ calle 
for a minimum sentence of 30 day 

Congress Approves Supplemental Appropriation 
Funds Available for Civil Jury Trials 

of the fiscal year, according 
L. Ralph Mecham, AO director. 

The supplemental approval al; 
contains $1.2 million for an adc 

Congress has approved and Presi- 
dent Reagan has signed the urgent 
supplemental appropriations bill, 
H.R. 4515, which provides $3.8 mil- 
lion in supplemental funding for the 
fees and allowances of jurors. Ac- 
cordingly, the Judicial Conference's 
Executive Committee has rescinded 
its previous advice to suspend civil 
jury trials. 

In addition to funding for jurors, 
the bill provides for the transfer of 
$8 million into the appropriation 
"salaries of supporting personnel" 
and $3 million into "space and facili- 
ties." These transfers were derived 
from a projected balance in the 
"salaries of judges" appropriation 
and from savings achieved through 
Gramm-Rudman-Hollings reduc- 
tions in the "expenses of operarion 
and maintenance of the courts" ap- 
propriation; they will be applied to 
personnel salaries and rental of 
space. This transfer of funds is suffi- 
cient to preclude the likelihood of 
any furlough of personnel at the end 

tional 200 deputy clerk positions ai 
$1.3 million for a study of the co 
struction of a new judicia: 

Amendments to Fedeti 
Rules of Appellate 
Procedure Effective 

Since Congress took no action 
defer the effective date of tl 
amendments to the Federal Rules 
Appellate Procedure that we 
adopted by the Supreme Court ( 
Mar. 10 pursuant to 28 U.S. 
§ 2072, they became effective July 
1986, as provided in the Suprer 
Court Order promulgating them (5 
out in House Document 99-179). 
copy of this order was forwarded 
all federal judges and U.S. mag 
trates in March. 

Stoorza Named FJC 
Systems Div. Director 

Edwin L. ("Larry") Stoorza, Jr., is 
the new director of the FJC's Innova- 
tions and Systems Development Di- 
kasion, replacing Gordon Bermant. 

Mr. Stoorza came to the FJC in 
1976, serving as project leader for 
:he design and development of 
\IMS and as deputy director of the 
nnovations and Systems Develop- 
nent Division. In 1981, he joined 
he AO as chief of the Systems Serv- 
ces Branch to ensure a smooth 

Larry Stoorza 

ourtran transfer and to assist in 
lordinating the automation activi- 
;s of the AO and FJC. He then he- 
me assistant director of Manage- 
ent Systems and Services of the 
0. In that position, he was respon- 
3le for directing the activities of the 
atistical Analysis and Reports Divi- 

Judicial Workload Statistics 

The Reports of the Proceedings of 
the Judicial Conference of the United 
States, held in March 1985 and in 
September 1985, together with the 
Annual Report of the Director of the 
Administrative Office have been 

The volume includes an analysis 
of the workload of the federal 
courts for the 12-month period 
ended June 30, 1985. It was pre- 
pared by the Statistical Analysis 
and Reports Division, with appen- 
dix tables generated by the Sys- 
tems Services Division. 

sion. Administrative Services Divi- 
sion, and Systems Services Division. 
A native Texan, Mr. Stoorza is a 
graduate of the University of 
Oklahoma and was recently pro- 
moted to the rank of captain in the 
U.S. Naval Reserve. ■ 

Judicial Conf. Certifies 
Impeachment of Judge 
May Be Warranted 

The Judicial Conference of the 
United States has certified to the 
speaker of the House of Representa- 
tives that "consideration of the im- 
peachment" of Judge Harry E. 
Claiborne (D. Nev.) "may be war- 
ranted." The certificate was signed 
by Chief Justice Warren E. Burger on 
June 30, 1986, and states that on 
June 18, 1986, the Judicial Council of 
the Ninth Circuit certified to the Ju- 
dicial Conference (as provided by 28 
U.S.C. § 372(c)(7)(B)) that Judge 
Claiborne "has engaged in conduct 
which might constitute grounds for 
impeachment under Article I of the 
United States Constitution." The cer- 
tificate of the Ninth Circuit Judicial 
Council, dated June 18, 1986, was 
signed by Chief Judge James R. 

The Judicial Conference's certifi- 
cate also notes that "in special ses- 
sion by telephonic conference call," 
the Conference "has exercised its au- 
thority under 28 U.S.C. § 372(c)(8) to 
consider the certificate of the Judicial 
Council of the Ninth Circuit." The 
Judicial Conference, acting upon the 
Ninth Circuit's certificate and upon 
the certified official records of Judge 
Claiborne's conviction in the district 
court, concurred in the Ninth Cir- 
cuit's determinations. 

Judge Claiborne was convicted in 
the U.S. District Court for the Dis- 
trict of Nevada on two counts of 
violating §7206(1) of the Internal 
Revenue Code. That conviction be- 
came final May 1, 1986, when the 
district court received the mandate 
of the U.S. Court of Appeals for the 
Ninth Circuit, affirming the lower 
court's judgment. ■ 

— — 3 


McCafferty Retires as 
Division Chief at AO 

On June 30, James A. McCafferty, 
chief of the Statistical Analysis and 
Reports Division of the Administra- 
tive Office, retired. His 38 years of 
government service include 23 years 
with the AO. 

Mr. McCafferty' s work with statis- 
tics gathering started during his ten- 
ure at the U.S. Bureau of Prisons. 
When the AO's Statistical Analysis 
and Reports Division was formed in 
1977, he was designated division 

In submitting his resignation, Mr. 
McCafferty wrote: "I have seen our 
technological advances rise from 
simple manual statistical systems to 
highly sophisticated communication 
of data from the courts to the main 
computer in the division. I have 
seen the expanded use of federal ju- 
dicial statistics." Mr. McCafferty also 
praised the division's staff and their 
dedicated service. 

Mr. McCafferty's service was rec- 
ognized when AO personnel hon- 
ored him recently at a luncheon. AO 
Director L. Ralph Mecham, in ad- 
dressing the gathering, said, "We 
are losing a valued employee who 
has provided dedicated leadership in 
an area vital to the work of the fed- 
eral courts." ■ 

Positions Available 

Federal Public Defender, E.D.N.C. 

Salary to $70,500. Requires law degree 
and membership in a state bar; five 
years' criminal practice experience 
(preferably with significant federal 
criminal trial experience). Apply by 
Aug. 31 on form available from J. Rich 
Leonard, Clerk, U.S. District Court, 
P.O. Box 25670, Raleigh, NC 27611. 

Federal Public Defender, S.D. 
W.Va. Salary fixed by 4th Cir. Four- 
year appointment. Requirements as in 
above notice; must start work by Oct. 
15, 1986. Apply by Aug. 15 on form 
available from Ronald D. Lawson, 
Clerk, U.S. District Court, P.O. Box 
2546, Charleston, WV 25329. 



! I 

4 A , ^ 



MECHAM, from page 1 

administrative challenge where you 
must have management by consen- 
sus — a collegial kind of manage- 
ment — where you have to work by 
consensus and moral suasion. 

Do you think the judges don't re- 
alize that you have limits on what 
you can do? 

I think, in fact, a few of them do 
not appreciate it, particularly those 
who are not involved in Judicial 
Conference committees or who may 
not have had experience working 
with Congress. But there are some 
very substantial limits on what the 
AO can do. For example, we are hm- 
ited by the policies estabUshed by 
the Judicial Conference and its com- 
mittees. Secondly, 1 can assure you, 
we are limited by what Congress 
does. The classic example is Gramm- 
Rudman-HoUings itself— plus the 
whole appropriations process, and 
not just the money; Congress deter- 
mines court personnel levels; they 
determine whether the courts can 
have probation and the pretrial serv- 
ices in a mixed administration or 
whether they have to be separate. 
Almost day to day we must deal 
with limitations imposed on AO pol- 
icy by Congress and by the Judicial 

Do most of the questions come 
from the new judges? 

Yes, some are from new judges, 
but also from a few others who have 
not had to wrestle with congres- 
sional requirements. Moreover, 
some in the judicial family do not 
appreciate the other external limits 
imposed upon us. We have virtually 
no jurisdiction over buildings for the 
courts and very little over tenant al- 
terations. That's GSA's role. And, 
likewise, we have very little to say 
with respect to the U.S. Marshals 
Service or the Office of Personnel 
Management or the General Ac- 
counting Office, all of which restrict 
what we can do in the AO and what 
the judiciary can do. 

What is the complement of per- 
sonnel in the AO? 

Presently we have 538 employees. 

Our authorized positions are 583. 
We have been operating, because of 
Gramm-Rudman-HoUings, at a level 
of actually less than the 94 percent 
limit required for the rest of the judi- 
cial supporting personnel under 
standards imposed by the Judicial 

There are over 1,000 Article III 
federal judges in the system, and it 
takes a lot of management to see 
that the judges and their supporting 

L. Ralph Mecham 

staff have everything they need to 
process their cases. What are your 
biggest problems? 

The biggest problems clearly are: 
First, to cope with Gramm-Rudman- 
Hollings; second, to help defend our 
budget with the appropriations com- 
mittees and with the budget com- 
mittees of Congress. We have an ex- 
cellent budget committee of the 
Judicial Conference chaired by Chief 
Judge Charles Clark, who is really a 
judicial statesman. The AO plays an 
important role in that. Third is the 
delicate balancing act to implement 
policies required by Congress and 
the Judicial Conference that may not 
be popular with judicial personnel. 
The fourth problem is to assist in 
providing the kind of services that 
are needed: everything from payroll 
to personnel to supplies to equip- 
ment. One of the major programs 
we now have is the area of automa- 
tion. Better than one-third of our 
budget in the AO goes to help auto- 
mate the courts' administrahon. 

When a candidate for a judgeship 
is nominated for appointment to a 
federal court, do you make contact 

We do. The day after they are 
nominated I send a letter 
congratulating them and inviting 
them to come by the office, perhaps 
at the ttme of their Senate confirma- 
tion hearings. We then set up 
briefings. 1 meet with them person- 
ally and Deputy Director Jim 
Macklin often meets with them as 
well, and then we have people come 
in from the personnel division who 
can acquaint the judges with how 
they hire, how much they can pa) 
their law clerks and their secretaries 
what their benefits may be such a; 
judicial survivors' benefits, travel 
per diem, subsistence, insurance 
and that sort of thing. And, o 
course, we also talk to them abou 
the assistance we can give, of a lim 
ited nature, on space requirements 
If they are moving into chamber; 
that are being vacated by a judge 
that is easy. But if they are not, or i 
it is a new judge where there are m 
chambers, that is more of a chal 
lenge for us. 

If they don't have space in th 
courthouse, do you have to leas 

GSA must lease space, and tha 
means that sometimes othe 
agencies may be deposed in a fed 
eral building that is alread 
occupied. The space problem is on 
of the most vexing problems facin 
the judiciary, because for ne^ 
judges where there is no space avai 
able 1 have heard of delays up to fiv 
to sb( years before they get into th 
quarters planned for them. GSi 
feels that it can't begin the real wor 
on a project until a new judge i 
confirmed and funds are available 
At the AO we can do better tha 
that, but our role is narrow. 

Currently the courts are fun 
tioning under the Five- Year Plan f< 
Automation in the U.S. Court; 
which is being implemented jointl 
by the AO and the FJC. Given tl 
constraints of Gramm-Rudmai 

Hollings, are you able to keep on 

Gramm-Rudman-Hollings has hit 
this program, too. However, I don't 
think it has hit the fundamental part 
of it in a basic way yet. There have 
been some delays, but we have been 
able to keep our computer equip- 
ment and installation program going 

merce, and Justice Departments; 
that is, a 14 percent increase. That is 
less by $54 million than we had 
asked for, but nonetheless we got 
the biggest increase, and I feel quite 
encouraged by it. Big problems re- 
main, of course — the full House, the 
Senate — and we have to get it by the 
president. Then we must see what 

"I have at least 1,000 bosses 
to, a tremendous amount of 

that I have to be responsive 
responsibility, and very little 

at a pretty good clip. We have had 
to reduce the number of computers 
that we plan to install this year from 
31 to 26, but that is not as bad as it 
could have been. It has meant that 
we have had to delay general office 
equipment and word processing 
equipment a little more than we 
would have preferred. And, of 
course, there had to be some per- 
sonnel cuts in order to meet our 94 
percent quota, so we have had fewer 
people available for automation 
functions than we would have liked. 
As for the New AIMS program for 
the appellate courts, we were able to 
accept transfer of that just two days 
ago from the FJC [see related story, 
p. 1]. We are making progress. We 
hope we will be able to continue 
moving. We will see how Congress 
treats us during this next fiscal year. 
[fs very important. 

How much is in the AG's fiscal 
fear 1986 budget, and how much do 
>'ou expect to have for fiscal year 

Our current fiscal year appropria- 
ion is about $28 million. That con- 
rasts with a budget for the judiciary 
)verall of $1,031,000,000. So the AO 
mdget is 2.7 percent of the total ju- 
iiciary budget. 

The House Appropriations Com- 
nittee has approved for the judici- 
iry overall an increase of almost 
'143 million over fiscal year 1986, for 
total budget of about 
1,174,000,000. The judiciary got a 
omewhat larger increase than did 
he other agencies covered by our 
Ppropriafion, namely State, Com- 

happens when Gramm-Rudman- 
Hollings, round two, kicks in next 
Oct. 1. 

When the supplemental funds for 
fiscal year 1986 came through, did 
that mean that Congress was recog- 
nizing the fact that the courts must 
stay open— that judges must be 
available for certain matters — or did 
they decide the courts just needed 
more money? 

Well, both, I think. Actually, our 
Judicial Conference Budget Commit- 
tee and the AO had anticipated that 
we would not have enough money 
for jurors' funds for the fiscal year, 
and so last February the judiciary 


16 because supplemental money had 
not yet been appropriated. Congress 
did appropriate the money and the 
president, we were told, indicated 
he would sign the bill, so the Con- 
ference was able to lift the suspen- 
sion. Congress knew we needed the 
money. They knew that it was vital, 
but there were these institutional de- 
lays that caused the problem. Actu- 
ally, the courts were open, and even 
in the regular workaday business 
civil jury trials are delayed or post- 
poned for a whole variety of rea- 
sons. So a brief delay was not a cata- 
clysmic thing, but it was nonetheless 
very serious because, to my knowl- 
edge, this is the first time that civil 
jury trials have ever had to be de- 
ferred because of a lack of funds. It 
caused serious disruption through- 
out the judiciary. 

Have you made any managerial 
changes since taking office? 

Yes, we did indeed make some 
managerial changes. The Chief Jus- 
tice expected me to do so, and I am 
sure others in the judicial branch did 
as well. They ranged from such 
things as doing away with an assist- 
ant director position to the Chief Jus- 

"We literally ran out of money for civil trials as of June 16. 
It caused serious disruption throughout the judiciary." 

asked Congress for additional funds. 
We alerted the Judicial Conference 
in March that unless more funds 
were appropriated the Conference 
would conceivably have to suspend 
civil jury trials. So Congress was 
alerted well in advance, as was the 
Judicial Conference in March. Both 
appropriations committees in Con- 
gress recognized we must have ad- 
ditional funding, and they approved 
it. The only trouble came when they 
included it in the supplemental ap- 
propriation bill for fiscal year '86. 
There were many controversial pro- 
visions which caused delays of a 
month or two in the House and ad- 
ditional delays in the Senate. Conse- 
quently, we literally ran out of 
money for civil jury trials as of June 

tice appointing a committee, chaired 
by Judge Edward Devitt with three 
other distinguished judges, to look 
at the overall management and 
staffing of the AO. That committee 
is about ready to report. We have 
also beefed up our whole space and 
facilities team, trying to deal with 
that very difficult challenge posed 
by GSA and by the necessity to have 
adequate chambers and courts. I 
think we have substantially 
strengthened our legislative re- 
sponse and are supportive of the ju- 
diciary in that area. We have tried 
both to push for and to be more re- 
sponsive to judges generally, includ- 
ing bankruptcy judges. We have 
tried to instill an attitude in our 
See MECHAM, page 6 



MECHAM, from page 5 

employees— most of them already 
had it— to be prompt and polite and 
professional; to have pride in their 
work; to be positive and to operate 
under a rebuttable presumption that 
if somebody in the courts is re- 
questing something, we would try 
to get it. And if it was impossible, 
we would let them know that and 
why. We've initiated a program of 
goal-setting on an annual basis with 
periodic review and objectives. And, 
of course, we have complied fully 
with Gramm-Rudman-HoUings, set- 
ting staff limits actually below the 94 
percent of our authorization. We are 
adopting zero sum budgeting for the 
AO so as to justify every dollar that 
is spent. We do not assume we need 
the money just because we have had 
it in the past. 

So there have been quite a few 
management changes, but there are 
going to be many more and some of 
them quite soon. I am a great be- 
liever in management by objectives. 
I don't think it is a panacea, but I do 
think it has value. We did this in the 
corporation for which I worked, the 
university where I was vice presi- 
dent, the government agencies 
where I have served. 

Could we talk about the future of 
the courts? Do you believe the fed- 
eral court system will continue to 
grow at the pace it has over the past 
20 or so years? Do you anticipate 
added problems with growth? 

Well, district court filings between 
1969 and 1985, which is roughly the 
period of Chief Justice Burger's in- 
cumbency, are up 178 percent, ap- 
peals filings are up 226 percent, the 
number of district court judgeships 
has gone up 69 percent, appellate 
judgeships have gone up 61 percent. 
The budget overall for the judiciary 
has expanded by 720 percent and 
the major reason is the exploding 
caseload. I talked to a researcher 
who is studying this, and he tells me 
that during Chief justice Burger's 
administration there have been 314 
statutes passed by Congress which 
have added to the jurisdiction of the 

federal judiciary. It is no wonder the 
caseload has jumped. In my opin- 
ion, the courts' jurisdiction will con- 
tinue to expand until Congress 
comes up with a dollar figure for 
each new jurisdictional item they 
impose on the judiciary and are 
compelled to provide funding before 
the law goes into effect. A judicial 
impact statement is needed. Usually 
the authorizing legislation is sepa- 
rate from the appropriation. Some- 
how we have to make those who 
impose these burdens on the courts 
realize what they are doing. I would 
predict a continued increase in court 

"We have tried to instill 
an attitude in our em- 
ployees to have pride in 
their work and to [pre- 
sume] that if somebody 
in the courts is requesting 
something, we would try 
to get it." 

work until such things as diversity 
jurisdiction are ended. Twenty-five 
percent of the current caseload 
comes from diversity disputes. Un- 
less Congress starts cutting back on 
some of the jurisdiction already 
given or stops the flow of statutes, I 
think the judiciary will continue to 
grow. So the future of the judiciary 
depends for the most part on what 
Congress does and what happens in 
the economy as in the case of bank- 
ruptcy cases. Bankruptcy filings, we 
project, will go up 35 percent this 
year, a sign of an unhealthy 
economy, at least in the areas where 
these filings are taking place. Of 
course, the courts can do much 
themselves to improve case manage- 
ment and judicial administration. 

Your position carries with it the 
title of secretary of the Judicial Con- 
ference of the U.S. What responsi- 
bilities come with this? 

I am indeed secretary, and I re- 
gard the secretariat responsibility of 
the AO to the Judicial Conference 
and its committees to be of para- 

mount importance, and we give the 
highest priority to it. 

Does the AO staff the committees 
working on Judicial Conference 

We do provide staffing, and I re- 
gard this as an essential function for 
judicial administration in our coun- 
try. We have certain members of the 
staff assigned to work with the Judi- 
cial Conference as an entity. We 
serve the Judicial Conference as 
such and respond to its chairmen 
and the Chief Justice, and I work 
very closely with him in that capac- 
ity. But each of the committees and 
subcommittees requires staffing. Jim 
MackUn, my deputy, for example, 
works with the rules committees 
and court administration. Our gen- 
eral counsel staffs the judicial branch 
committee. We have at least one 
staff member assigned to every sub- 
committee and to every committee 
of the Conference. 

Staff members work with the com- 
mittees and help prepare the 
agenda. They handle the informa- 
tion flow to the committee mem- 
bers. They are responsive to the re- 
quests of the chairmen. They may be 
involved in setting up studies. They 
help in arranging the meetings 
which are held by the committees 
and subcommittees, and handle the 
logistics involved. It's a major re- 
sponsibility and it's a very important 

Could you describe how the AO 
cooperates with the Conference 
committees in drafting legislation to 
be proposed to Congress? 

Well, it happens two ways. Often 
we will have requests from Congress 
to comment on specific legislation, 
and in response to that request, the 
AO, working with the Conference 
committee chairmen and the sub- 
committees, will endeavor to frame 
a response. It might just be a letter 
commenhng on a bill, or it may be 
actually writing amendments. That's 
one aspect of it. The other aspect is 
that the Conference itself will, as 
part of the committee process, or on 
its own initiative, propose legisla- 

Hon, and then it is necessary to draft 
implementing bills. Some typical re- 
cent examples: bankruptcy judge- 
ship legislation and retirement of 
magistrates, bankruptcy judges. 
Claims Court judges, and others. 
Dn behalf of the Conference, I sub- 
nit Conference-approved legislation 
:o Congress, and usually members 
igree to sponsor it. 

What happens if you learn that 
ipecific legislation has already been 
ntroduced that you believe will 
»ose a great problem for the federal 

Usually we would alert the rele- 
vant committees of the Conference, 
f they were not already apprised of 
t, and a suitable response will then 
»e framed. If there is time, it will go 
ip through the normal committee 
>rocedures. Sometimes we have to 
tiake some ad hoc decisions in re- 
ponse to an emergency. Usually, 
hough, it will involve an issue 
Inhere we already have policy guid- 
nce of some kind from the Confer- 
nce, or we can get it presently from 
le committees and subcommittees. 
es, we would respond. However, I 
lust also say that if it impacts the 
idiciary, most frequently we will 
!ceive a request from the congres- 
onal committees for action. Of 
)urse, there are times when 
nendments are offered on the floor 
the House or the Senate, particu- 
rly in the Senate where the rules 
e much looser on germaneness 
id where discipline is much less 
;ht. There, an amendment can be 
fered without our having any 
lance to respond at all. No fore- 
arning at all. To illustrate, some 
>or amendments were added to 
e bankruptcy judgeship bill in the 
nate that the Conference opposed, 
d we didn't know they were com- 
; up. We do have an opportunity 
seek some corrective action in the 
3use, but had the amendments 
me on a House-passed bill then 
e only recourse would be to the 
nate and House conferees. 
rhe chairman of the House Judi- 
iry Committee has said he will 


initiate impeachment procedures in 
the House against a federal judge. 
Will the AO get involved in any 

In fact, the AO was asked several 
questions by Chairman Kastenmeier 
of the House subcommittee which 
handled the Judge Claiborne matter 
in the House. As you know, the 
House performs the equivalent of a 
grand jury function in the impeach- 
ment process, and we received 
many questions and worked 
cooperatively with the chief judge 
and clerk of the court in Las Vegas, 
Nev., and with Chief Judge Brown- 
ing in providing information to the 

"There have been quite a 
few management changes, 
but there are going to be 
many more and some of 
them quite soon." 

committee. We don't know what we 
will be asked to do by the Senate. 
On July 1, a certificate was delivered 
to the speaker of the House certi- 
fying at the direction and on behalf 
of the Judicial Conference, which 
held an emergency meeting on June 
27, that the Conference had deter- 
mined that there might be grounds 
for impeachment. Similar action had 
been taken previously by the Ninth 
Circuit. The Chief Justice conveyed 
the Ninth Circuit's certification along 
with that of the Conference to the 
House [see related story, p. 3]. 

Is there anything in the federal 
court system you would like to see 

As for management improve- 
ments, the field is "white already to 
harvest" in the AO. We have many 
great people. But we have probably 
done a better job in trying to help 
the courts improve management, for 
example in the area of automation, 
than we have helped ourselves. We 
don't have a five-year automation or 
management plan for the AO and 
we are going to have one for auto- 
mation, word processing, and for 

management generally. Fortunately, 
we have many good people who 
work effectively with those re- 
sources we do have. Then, too, the 
courts can improve their manage- 
ment. Chief Justice Burger certainly 
has done more than anyone I know 
to try to make all participants in the 
judicial family management- 
conscious. Obviously this has to be 
done in a collegial way; it can't be 
imposed on anyone. But that clearly 
is something, I think, where the ju- 
dicial branch can do a better job. 

You asked for a sort of "legislative 
wish list." I think that increasingly 
the judiciary should be able to con- 
trol its own destiny with fewer out- 
side conti-ols. Some of my staff dis- 
agree with me in part, but I think 
more and more we need to get con- 
trol of the money for buildings and 
for tenants' alterations, and perhaps 
contract out projects instead of hav- 
ing to go through GSA. Secondly, in 
the AO we need to be under the 
same personnel system the rest of 
the judiciary is. We have the anom- 
aly of having great difficulty in 
hiring people from the courts be- 
cause they are not under the com- 
petitive system. The judiciary ought 
to have its own personnel system. 
We shouldn't have to follow all the 
red tape that the Office of Personnel 
Management imposes. That's got to 
change. We must improve our rela- 
tionships between the courts and 
the AO and the U.S. Marshals Serv- 
ice. I hope we can do a better job at 
that. The police function is in the ex- 
ecutive branch and ought to be 
there, but I believe we can work 
more closely. 

Would you change the security 
system for the judiciary? 

You are talking now about per- 
sonal security? I think the Marshals 
Service generally does a good job, 
but Gramm-Rudman-Hollings cuts 
had to be made by the marshals; 
then with the AO, they had to cut 
back the number of court security of- 
ficers and, lastly, the number of 
GSA guards was reduced. I've got to 
See MECHAM, page 8 




MECHAM, from page 7 

believe that the cumulative effect 
was to reduce security for judges 
generally. It's a very difficult prob- 
lem and adds to the inherent tension 
which arises with dual ad- 

Another area, and I should have 
perhaps mentioned this first: I hope 
the Quadrennial Commission will 
take steps to raise judicial salaries 
along with congressional salaries 
and those for political appointees of 
the executive branch. I think it has 
to be done. 1 know it's difficult to do 
that when you have the specter of 
Gramm-Rudman-HoUings and large 
deficits hanging fire over the 
economy. But 1 think it must happen 
if the country is to attract the best 
judges and keep those we have 
now. Judges need to have financial 
security. I recognize they are not go- 
ing to be paid as much as they 
would if they were in the private 
practice of law, and they know that. 
They're public-spirited ot they 
would not be in the jobs they are in. 
But there's an important area where 
we must have a major break- 
through, and that's the area of 
salaries for judges and for the judi- 
cial system generally. 

Because of inflation since 1969, 
judges' salaries have gone down in 
real dollars substantially. If they 
were being paid at 1969 rates, in 
1985 dollars a district judge would 
receive about $130,000 and a circuit 
judge $137,000. In fairness they 
ought to be paid at least that much 
just to stay even. Last year we 
gained a major legislative break- 
through on travel and subsistence. 
The benefits will commence Oct. 1, 
1986. For example, a judge coming 
to Washington, D.C., on judicial 
business is probably going to get 
more than twice (if he or she item- 
izes expenses) as much as the judge 
is able to get now. H 

NEW AIMS, from page 1 

Fourth, Ninth, and Tenth Circuit 
Courts of Appeals, which acted as 
pilot courts for this project. The 
Center and the pilot courts were 
joined by representatives from the 
other circuits and from the AO at 
critical points in the planning and 
development of the system. 

The major advantage New AIMS 
brings to the court is its powerful 
ability to generate schedules, forms, 
and reports directly from the accu- 
mulation and processing of coded 
docket entries. New AIMS is inten- 

SENTENCING, from page 2 

for a particular minor offense, the 
Commission will have the authority 
to authorize a maximum guideline 
sentence of seven months. ■ 

BICENTENNIAL, from page 1 

broadcasts, lecture series, and other 
forums for educating the public 
about the Constitution. 

Senator Dennis DeConcini 
(D-Ariz.), ranking minority member 
of the Senate Judiciary Committee 
Constitution Subcommittee, was in- 
troduced as a new member of the 
commission, replacing Washington 
attorney Edward P. Morgan, who 
died in March. I 

tionally open-ended in its design, 
which means that courts can in- 
crease their uses of it as they become 
more familiar with its features. The 
Center is now incorporating many of 
the features and capabilities of New 
AIMS into systems under develop- 
ment for the district and bankruptcy 
courts. New AIMS thus brings an in- 
direct benefit to these other courts as 
well. The AO is currently working 
with the Second, Sbcth, and Seventh 
Circuits on schedules for the instal- 
lation of New AIMS in those 
courts. ' 





Vol. 18 No. 8 August 1986 

The Federal Judicial Center 
Dolley Madison House 
1520 H Street, N.W. 
Washington, DC 20005 

Official Business 

Postage and 

fees paid 

United States 





.^<^^' .Oib^ 





udge Frank Johnson Discusses Civil Rights \^^ ^ vc This was subsistence farming? 
n the Sixties; Prison Reform in Alabama"^ 

judge Frank M. Johnson, Jr., is a na- 
ive of Alabama and received his LL.B 
ram the University of Alabama in 1943. 

The judge's federal career began ivith 
is appointment as U.S. attorney for the 
iorthern District of Alabama in 1953. 
[fter two years he was appointed to the 
l.S. District Court, where he served 
ntil 1979, when he was elevated to the 
ifth Circuit. When the Fifth Circuit 
m restructured in 1981, Alabama be- 
ime part of the new Eleventh Circuit. 

Though he is well known for his civil 
ghts decisions, those cases are only a 
%rt of over 30 years' outstanding serv- 
e on the federal bench, a fact recognized 
'hen he was given the prestigious 
'roitt Award in 1985. 
Your early years were spent in 
Winston County, Alabama. Did this 
>mmunity affect your approach to 
le law and to deciding constitu- 
9nal issues? 

1 think background affects every- 
le. Northwest Alabama, where 
inston County is situated, was in- 
ibited back in the early 1800s by 
mnants of Andrew Jackson's army 
ter he had been down to fight the 
eek Indians. Land in Tennessee at 

that time was selling for $2 and $3 
an acre but you could buy land in 
Winston County for 5 cents and 10 
cents an acre. Many of Jackson's 
men went back to Tennessee and 

Judge Frank M. Johnson, Jr. 
got their famihes and returned to 
northwest Alabama, where they 
bought small parcels of land — 
something that they could farm on 
their own. Slavery wasn't known in 
that part of the state, so if your farm 
was tended, you tended it. 

Center Publishes Two Bibliographies on the 
Bicentennial of the U.S. Constitution 

The Center has recently issued two ted bibliography mentioned above is 

publications related to the bicenten 
nial of the United States Constitution. 

The Writing and Ratification of the 
U.S. Constitution: An Abbreviated Bibli- 
ography is a brief annotated list of sev- 
enteen books and articles on the 
Philadelphia Convention of 1787, its 
causes, and subsequent events. 

The Writing and Ratification of the 
U.S. Constitution: A Bibliography, by 
Russell R. Wheeler, is a more exten- 
sive bibliography on the subject, 
consisting of 44 pages. This publica- 
tion deals mainly with the founding 
period but also includes, more 
broadly, some literature on American 
constitutional history. The abbrevia- 

included in this larger version. Both 
versions include a 2-page chronology 
of events of the founding period. 

The bibliographies were prepared 
by the Center to assist federal judges 
and other members of the federal ju- 
dicial system with their participation 
in the celebration of the bicentennial 
of the Constitution. 

A copy of either or both of these 
bibliographies can be obtained by 
writing to Information Services, 1520 
H St., N.W., Washington, DC 20005. 
Enclose a self-addressed mailing la- 
bel, preferably franked (2 oz. for the 
shorter version; 8 oz. for the longer). 
Please do not send an envelope. 

/> Absolutely. The people in 
\yin^ton County adhered rather fer- 
vently to the Jacksonian philosophy 
out of fierce loyalty to the national 
government. The most dramatic ex- 
ample of that was about the time the 
See JOHNSON, page 4 

House Approves More 
Bankruptcy Judgeships 

On Aug. 5, the House approved 
H.R. 5316, a bill to authorize 52 ad- 
ditional bankruptcy judgeships and 
to make permanent the U.S. trustee 
program for the administration of 
bankruptcy estates under the De- 
partment of Justice, mandating the 
program in every judicial district. 

During House and Senate hear- 
ings on the bill. Judge Robert E. 
DeMascio (E.D. Mich.), chairman of 
the Judicial Conference's bankruptcy 
committee, summarized the Confer- 
ence's objections to the U.S. trustee 

Judge DeMascio noted that hous- 
ing the program in the Department 
of Justice, which in many cases rep- 
resents the interests of executive 
branch agencies as creditors of the 
estate, creates confhcts of interest. 
He further noted the cost of the U.S. 
trustee program. Because providing 
sufficient staff support at all the lo- 
cations where bankruptcy judges sit 
on a regular basis would be too ex- 
pensive for the department, its 
travel costs will increase and delays 
in cases can be expected. The U.S. 
trustees will have to duplicate the ef- 
forts of the clerk's offices, other Jus- 
tice Department lawyers, and per- 
sonnel of such other agencies as the 
IRS. The national U.S. trustee pro- 
gram is now estimated to cost more 
than $50 million on a regular basis; 
Judge DeMascio stated the Confer- 
ence's opinion that a similar pro- 
gram operated in the judiciary 

See BANKRUPTCY, page 12 



Sentencing Commission Asks for Outside Input 

This IS one of a series of articles to 
keep federal judges and supporting per- 
sonnel informed about the Sentencing 
Commission's work. 

The U.S. Sentencing Commission 
continues to solicit the widest possi- 
ble comment on its work. To this 
end, it will publish working draft 
guidelines for public comment in 
late September in the Federal Regis- 
ter. While not a complete or final 
document, the working draft will be 
detailed enough to allow meaningful 
evaluation. It will also identify im- 
portant issues that the commission 





believes need more extensive public 
input. The commission stresses that 
changes in the draft will be made up 
until the time the guidelines are sub- 
mitted to Congress next year. 

The Sentencing Commission urges 
interested parties to study the draft 
after its publication and submit writ- 
ten suggestions on how to improve 
it. Chairman William W. Wilkins, 
Jr., emphasized that the "guidelines 
should reflect the combined efforts 
of as many interested people as 

In conjunction with publication of 
the working draft, the commission is 
planning a series of public hearings 
across the country, which the com- 
mission hopes interested individuals 



Published monthly by the Administrative Of- 
fice of the U.S. Courts and the Federal Judicial 
Center. Inquiries or changes of address 
should be directed to 1520 H Street, N.W., 
Washington, DC 20(X)5. 


Alice L. O'Donnell, Director, Division of 
Inter-Judicial Affairs and Information Serv- 
ices, Federal Judicial Center. Peter G. 
McCabe, Assistant Director, Program Man- 
agement, Administrative Office of the U.S. 

will plan to attend. Dates for the 
hearings were Hsted in the August 
issue of The Third Branch. Further de- 
tails, including the specific location 
of each hearing, will be provided as 
the informaHon becomes available. 

The Sentencing Commission's 
most recent public hearing on July 
15 generated wide-ranging opinions 
on the sentencing options that are 
available and appropriate for de- 
fendants convicted of federal of- 
fenses. Testifying at the hearing. As- 
sistant Attorney General Douglas 
Ginsburg of the Justice Depart- 
ment's Antitrust Division argued for 
mandatory jail terms for most 
Sherman Act violators, including 
first- time price-fixers. While serving 
to punish the offender, a prison sen- 
tence would also act as a deterrent 
to others contemplating similar crim- 
inal activity, he said. "Deterrence is 
the primary goal of criminal antitrust 
enforcement, and we are convinced 
that accomplishing this goal requires 
the use of very substantial penalties 
in the form of both fines and impris- 
onment," Ginsburg testified. 

Herb Hoelter and Marcia Shein, 
representing the National Associa- 
tion of Criminal Defense Lawyers, 
argued for more emphasis on alter- 



The Chief Justice 
of the United States 

Judge Daniel M. Friedman 

United States Court of Appeals 

for the Federal Circuit 

Judge Arlin M. Adams 

United States Court of Appeals 

for the Third Circuit 

Chief Judge Howard C. Bratton 

United States District Court 

District of New Mexico 

Judge Jose A. Cabranes 

United States District Court 

District of Connecticut 

Judge A. David Mazzone 

United States District Court 

District of Massachusetts 

Judge Martin V. B. Bostetter, Jr. 

United States Bankruptcy Court 

Eastern District of Virginia 

L. Ralph Mecham, Director 

Administrative Office of the 

United States Courts 

Federal Judicial Center 

A. Leo Levin, Director 

Charles W. Nihan, Deputy EHrector 

native sentencing and less on im- 
prisonment. "There is no evidence 
that longer prison sentences provide 
greater deterrence than shorter 
ones," Ms. Shein said. 

The commission's fifth hearing is 
scheduled for Sept. 23, 1986, in 
Washington, D.C., and will deal 
with the topic of plea negotia- 
tions. B 

Nominations to State Justice Institute Board 

President Reagan in July nomi- 
nated 9 of the 11-member Board of 
Directors of the State Justice Insti- 
tute, subject to Senate confirmation. 
Two remaining appointments are to 
be made — one from the public sec- 
tor, the other from the judiciary. 

Creation of the State Justice Insti- 
tute was proposed by the Confer- 
ence of Chief Justices in 1979, and 
the institute was established by stat- 
ute in 1984. Under this legislaHon, it 
is authorized to make grants to sup- 
port the state courts, law schools, 
national nonprofit organizations, 
and other groups working in the 

areas of judicial adnunistration, con- 
tinuing judicial education and train- 
ing, and judicial research. 

Though President Reagan pro- 
posed a recission of the institute's 
fiscal 1986 funds. Congress did not 
approve it. Thus, although the $8 
million appropriated for fiscal year 
1986 remains available until Sept. 30, 
the institute probably will not have 
time to spend or obligate most of 
that amount before the beginning of 
fiscal year 1987. Any unspent or un- 
obligated fiscal year 1986 funds 
would revert to the Treasury on 
Sept. 30. ■ 


ABA House Receives Report on Professionalism "^^ ^^ sanctions for errant lawyers 

by the judiciary (with an added rec- 
then ABA president, agreed with ommendation that state courts adopt 
the need for such a study, and the 


A special commission of the 
American Bar Association has rec- 
ommended changes directed at im- 
proving the professionalism of law 
schools, practicing lawyers, and 
judges. The commission was formed 
in February 1985 following Chief Jus- 
tice Burger's call for a study to deter- 
mine whether practicing lawyers are 
"moving away from the principles of 
professionalism." John C. Shepherd, 

Parole Commission Cracks 
Down on Crack 

The U.S. Parole Commission has 
proposed amending its parole pol- 
icy guidelines so as to sanction 
more appropriately offenses re- 
lated to the form of cocaine popu- 
larly known as "crack." The com- 
mission has solicited public 
comments on the content of the 
proposed guidelines. 

The current guidelines, con- 
tained in 28 C.F.R. § 2.20, include 
an Offense Behavior Severity In- 
dex to assist in categorizing the se- 
verity of various forms of criminal 
conduct. Although examples 
relating to cocaine offenses exist, 
separate guidelines are believed 
necessary in light of differences be- 
tween ordinary forms of cocaine 
and the more potent crack. For ex- 
ample, the present guidelines for 
heroin and opiate offenses take 
into account the relative potencies 
of heroin and Dilaudid, and multi- 
ply distributed amounts of 
Dilaudid by a factor of two to con- 
vert such amounts to their heroin 
equivalents. A similar conversion 
factor might be appropriate for 
crack, the Parole Commission be- 
lives. Guidelines that reflect the 
smaller quantities involved in 
trafficking in the more potent crack 
might also be developed. In addi- 
tion, because of the difficulty of 
analyzing the purity of small 
amounts of crack, the guidelines 
for crack may need to take account 
of its weight alone, rather than 
t)oth its weight and its purity, the 
factors assessed for heroin and or- 
dinary cocaine. 

commission was constituted under 
the chairmanship of former ABA 
president Justin A. StarJey. 

The commission's 155-page report 
contains recommendations directed 
to law schools, practicing lawyers, 
bar associations, and judges. The re- 
port recommends improved cover- 
age of ethics in law schools, higher 
standards for law school admissions, 
more and better continuing educa- 
tion for practicing lawyers, more un- 
derstandable, and written, fee ar- 
rangements with clients, and strict 

a rule similar to Federal Rule of Civil 
Procedure 11). The report empha- 
sizes the need to educate the public 
about the legal profession, since 
much of the criticism leveled at law- 
yers and judges results from a lack 
of knowledge as to how the judicial 
systems — state and federal — func- 

Members of the ABA House of 
Delegates considered the report at 
the ABA's annual meeting last 
month. The report will now be dis- 
tributed to bar associations and the 
judiciary. | 

House Cuts Appropriations for Judiciary; 
Final Word Rests with the Senate 

The House of Representatives has 
approved and sent to the Senate a 
bill that includes appropriations for 
the judiciary in the amount of 
$1,103,017,000 (exclusive of the 
Supreme Court). This figure is 
$107,080,000, or 9 percent, less than 
the judiciary had requested. 

The reduction came about in two 
ways. The House Appropriations 
Committee in July cut $53,297,000 
from the judiciary's request. In addi- 
tion, the bill for the Commerce, Jus- 
tice, and State Departments and the 
judiciary as passed by the full House 
included an amendment introduced 
by Congressman Bill Frenzel 
(R-Minn.) that provides for a further 
reduction of 5.03 percent in the judi- 
ciary's appropriations (with the ex- 
ception of salaries of Article III 
judges). The Frenzel amendment 
thus further reduced the funds avail- 
able to the judiciary (exclusive of the 
Supreme Court) for fiscal year 1987 
by an additional $53.8 million. 

On July 22, AO Director L. Ralph 
Mecham, on behalf of the Judicial 
Conference's Budget Committee, 
wrote to Senator Warren B. Rudman 
(R-N.H.), chairman of the Senate 
Committee on Appropriations, ask- 
ing that the committee amend the 

bill to exempt the judiciary from the 
provisions of the Frenzel amend- 
ment. The amount approved by the 
House Appropriations Committee 
before the amendment— $53,297,000 
less than requested — is "the bare 
minimum amount required by the 
courts and related agencies to fulfill 
their basic mission," Mecham said. 

On Aug. 14 the Senate Appropria- 
tions Committee struck the Frenzel 
amendment and voted to restore 
$50,699,000 of the funds cut. ■ 

Impeachment Papers 
Received by Senate 

On July 22, the House of Repre- 
sentatives unanimously voted four 
articles of impeachment against 
Judge Harry Claiborne (D. Nev.). 
Chief Justice Burger, on behalf of the 
Judicial Conference of the United 
States, had previously certified to 
the speaker of the House that the 
Conference and the Judicial Council 
of the Ninth Circuit had determined 
that there might be grounds for im- 
peachment (see August The Third 

On August 6, members of the 

House of Representatives formally 

See IMPEACHMENT, page 12 

4 * ..^^ 


JOHNSON, from page 1 


Civil War started. The state of 
Alabama seceded from the Union; 
the state legislature passed a seces- 
sion resolution. The people in 
Winston County met and they 
passed a secession resolution of their 
own; the theory behind it was that if 
the state of Alabama as a political 
entity of the national government 
had a right to withdraw by secession 
resolution, then Winston County as 
a political entity of the state of 
Alabama had the same right to with- 
draw from the state — and they did. 
They passed a resolution that read 
like this: "We agree with Jackson," 
mearung Andrew Jackson, "that no 
state can legally get out of the 
Union, but if we're mistaken in this 
and a state can lawfully and legally 
secede or withdraw from being a 
part of the Union, then any county 
being a part of the state, by the same 
process of reasoning, could cease to 
be part of the state. We think that 
our neighbors in the South made a 
great mistake when they attempted 
to secede and set up a new govern- 
ment. However, we do not desire to 
see our neighbors in the South mis- 
treated and therefore we are not go- 
ing to take up arms against them, 
but on the other hand we are not go- 
ing to shoot at the flag of our fa- 
thers. Old Glory, the flag of Wash- 
ington, the flag of Jefferson, the flag 
of Jackson. Therefore, we ask that 
the Confederacy on the one hand, 
and the Union on the other hand, 
leave us alone, leave us unmolested 
so that we may work out our politi- 
cal and financial destiny here in the 
hills of northwest Alabama." That is 
the reason they called the county the 
Free State of Winston. And, of 
course, that is a part of my heritage. 
So they were a county, but not a 
part of Alabama? 

Well, after the Civil War was over 
everyone ignored it. But that dem- 
onstrates their attitude. During the 
war the Confederacy sent press 
forces in there to impress the men 
who were eligible or who they 

thought were eligible into the Con- 
federate Army. Most of the men 
went through what they called the 
underground and joined the Union 
forces; a lot of my forefathers fought 
for the Union forces. On the other 
hand, some of them were officers in 
the Confederate Army. It was a di- 
vided family. 

The ordinary citizen up there has 
an individual strength. They have 

Judge Frank M. Johnson, Jr. 

integrity. They believe in the per- 
sonal integrity of the individual and 
they all respect it. 

Those were the kinds of people 
who through their integrity and for- 
titude helped establish our country. 

That's right. Those people were 
not then, and many of them aren't 
now, highly educated in the formal 
sense, but they are highly intelligent 
and they have a deep respect for the 
rights of the individual. 

Do you have any kin there now? 

Most of them have left. I may 
have been the last one to leave 
there, when I was appointed to the 
federal bench and moved to 
Montgomery in 1955. 

You were U.S. attorney from 1953 
to 1955. Were civil rights cases filed 
when you were in this office? If so, 
would you say that this experience 
prepared you for the civil rights is- 
sues that you handled on the dis- 
trict court? 

Well, 1 handled some civil rights 
cases during the time I was U.S. at- 
torney. During that time my head- 

quarters were in Birmingham. A lot 
of these cases were secHon 241 and 
242 cases. However, I guess the 
most dramahc case that 1 prosecuted 
when I was U.S. attorney was United 
States V. Fred & Oscar Dial. The Dial 
family was a very prominent family 
from down in Sumter County, 
Alabama. Sumter County is the 
southernmost county in the North- 
ern District of Alabama, and some of 
the plantation owners had a practice 
at that time, according to the evi- 
dence, of going over to Meridian, 
Mississippi, which wasn't far from 
Sumter County, and they would 
find healthy, strong black men who 
had been convicted by the justice of 
the peace courts and sentenced to 
jail because they hadn't paid their 
debts. These people would go to the 
court and pay what was owed and 
take custody of the blacks at the jail 
and take them back to their large 
plantations in Sumter County, 
Alabama. Then they would go and 
get the families of these men and 
bring them to their plantations. The 
only subsistence the blacks had was 
from the plantation store. If they at- 
tempted to run off from the planta- 
tion, the owners would take their 
bloodhounds and they would get 
them in the swamps, there along the 
Tombigbee River. It was in 1954 
when I prosecuted this case that pri- 
marily concerned one fellow, black, 
by the name of Monk Thompson, 
who had run away from the planta- 
tion. They took the dogs and they 
found him in the swamp and they 
brought him back and they strapped 
him, according to the evidence, to a 
bale of hay and they whipped him 
with a bull whip. He died. His body 
wound up in a funeral home in 
Livingston, Alabama, which is also 
in Sumter County, and the people in 
the funeral home took a picture of 
the body and sent the photograph to 
me as the U.S. attorney. I sent the 
FBI down there and they investi- 
gated it; the grand jury indicted 
them, and I prosecuted them for in- 
voluntary servitude, for peonage, 
and for slavery. The defendants 


hired the most prominent law firm 
in the South to represent them, and 
the case lasted a full week. Judge 
Seybourn Lynne, who went on the 
bench a few years before 1 did, was 
the trial judge. The jury convicted 
them, and the judge sent them to 
the penitentiary for the conviction of 
involuntary servitude. That's one ex- 
perience that caused me not to be 
too surprised at some of the things I 
ran into when I became U.S. district 
judge in 1955. 

If things like this were going on, 
why didn't your predecessors in of- 
fice do something about it? 

Well, 1 don't know whether it was 
reported to them as dramatically as 
it was reported to me, which was by 
a picture of a dead black man with 
bullwhip stripes all over his body. 
And I had access to a good FBI agent 
that I sent down there, and he made 
1 very, very thorough investigation, 
rhe grand jurors were incensed 
ivhen I presented the case to the 
^rand jury, and the verdict reflects 
:he peHt jury was also incensed. 

We had other cases, of course. We 
lad section 242 cases — violations 
ivhere law enforcement officers 
ivould discriminate against blacks 
md summarily punish them after 
hey had been legally arrested, 
hings like that. Those were misde- 
neanor cases. 

I'd like to go into the early civil 
•ights cases you handled and your 
jersonal reactions to the tasks be- 
■ore you. The Supreme Court deci- 
iions were definite in what they 
>aid, but they were not specifically 
ailored to the cases you handled. 

The Supreme Court didn't decide 
hown V. Board of Education until 
954, and I was U.S. attorney in 
Birmingham at that time. When I 
vas appointed a federal district 
udge I moved to a new district. It 
vas the second time in the history of 
he country that that had ever 
KTcurred. I suppose it is just politi- 
ally expedient to appoint judges 
rom the district where they are to 
erve. The first time a federal judge 

was appointed to a district other 
than where he resided occurred in 
Tennessee, when President Hoover 
appointed a judge to the Western 
District of Tennessee when he lived 
over in the Eastern District. The sec- 
ond time was when President 
Eisenhower appointed me from the 
Northern District of Alabama to the 
Middle District of Alabama. I was 

Judge Frank M. Johnson, Jr. 

the only judge in the Middle Dis- 
trict. My predecessor had died five 
or six months before I was sworn in. 
When I moved to Montgomery, the 
headquarters for the district court. 
Circuit Judge Richard T. Rives had 
been on the bench four years. Presi- 
dent Harry Truman appointed him, 
and Judge Rives and 1 served to- 
gether on many three-judge cases. 
The first one we served on was with 
Judge Seybourn Lynne (the trial 
judge in the Dial case), in 1956, 
Broivder v. Gayle. This was after Mar- 
tin Luther King had made his pres- 
ence on the scene in Montgomery, 
and after he established the bus boy- 
cott. City and state officials refused 
to allow the black people to sit in 
front of a certain line on the buses. 
There was clear precedent for 
segregating on the basis of race be- 
cause the Supreme Court in the 
1890s had decided Plessy v. Ferguson 
and that was a public transportation 
case. The first Justice Harlan dis- 
sented in that case, a prescient and 
beautifully written dissent. The law 

is now settled that you cannot in 
any public facility discriminate on 
the basis of race without violating 
the Fourteenth Amendment to the 
Constitution of the United States. 
However, it was not settled in 1956. 
We heard oral arguments in the 
Browder case after it had been 
pleaded to the point that the parties 
joined issue as to the constitutional- 
ity of the public transportation ordi- 
nances and state statutes that segre- 
gated people on the basis of race. 
Judge Rives and I wrote an opinion 
declaring the public transportation 
segregation laws unconstitutional. 
We didn't deal with enforced segre- 
gation in all public facilities specifi- 
cally because the issue wasn't before 
us, but the decision laid the ground- 
work for other public facility cases 
being decided contrary to the Plessy 
rationale. Plessy had not been over- 
ruled except as to the operation of 
public education facilities — the only 
issue before the Supreme Court in 
Brown v. Board of Education. In Brown 
the Supreme Court did not overrule 
Plessy, so the lower federal courts 
were left with a Plessy case and left 
with a Supreme Court decision out- 
lawing segregation in public schools, 
and that's where we were when we 
heard arguments and had our 
postargument conference in Browder. 
Judge Rives and I decided that 
there was a doctrinal trend reflected 
by the Supreme Court's decision in 
Brown that made Plessy no longer the 
law, and we declined to follow it. 
We declared unconstitutional and 
enjoined segregation in public trans- 
portation facilities in Alabama. 
Judge Lynne dissented. He had a 
very valid, legal basis for dissenting 
because Plessy had not been over- 
ruled. But as it turned out the 
Browder case went up on appeal and 
the Supreme Court affirmed what 
Judge Rives and I had held. Hind- 
sight tells us that we were right in 
perceiving a doctrinal trend and go- 
ing along and not waiting for them 
to overrule Plessy. 

See JOHNSON, page 6 

6 * 



JOHNSON, from page 5 

You made history. 

Well, as future challenges were 
presented we went from there to all 
aspects of public facilities — airports, 
public parks, restrooms in public fa- 
cilities, restaurants functioning in in- 
terstate commerce; and then the dis- 
trict judges were required to 
commence the implementation of 
Brown v. Board of Education. I didn't 
have any real problems in these 
cases involving segregation on the 
basis of race in public institutions or 
in institutions operated as public fa- 
cilities as far as the law was con- 
cerned. It was one of the most basic 
things, according to my concept of 
the Constitution, that you can't dis- 
criminate against a citizen in the use 
of public facilities whether it is a 
school, whether it is buses, whether 
it is libraries, whether it is public 
parks. Regardless of what the public 
facility is, if you discriminate in its 
use or availability on the basis of 
race, you are violating the Four- 
teenth Amendment. So that is the 
basis on which I have always put 
such decisions. 

It took some courage though. 

Well, 1 don't know. When you 
look back on it you say, "Well, why 
did I do that?" And then you ask 
yourself, "What alternative did I 
have?" As long as I remained a fed- 
eral judge and adhered to the oath 
that I had taken, I had no option. 

How did you three judges go 
about deciding Browder? 

Judges on multijudge courts do 
not confer before they have studied 
the briefs and heard the oral argu- 

Cook New Chief of 
AO Division 

David L. Cook was appointed 
chief of the Administrative Office's 
Statistical Analysis and Reports Di- 
vision, effective July 14, 1986. Mr. 
Cook has t)een with the AO since 
February 1972. He was promoted 
to the posifion of assistant chief of 
the Statistical Analysis and Reports 
Branch in January 1977. 

ments. They do not start conferring 
until there is a complete submission. 
After we had completed the oral ar- 
guments in Browder v. Gayle, we 
went to chambers and, as is the 
practice, the presiding judge called 
upon the junior judge to express 
himself. That practice is followed to 
keep the junior judge from being 
swayed or being intimidated by a 
senior judge expressing his position 
first. So Judge Rives as presiding 
judge said, "Well, Frank, what do 

are now and were then given a lot of 
authority. They were given that au- 
thority deliberately. Federal judges 
were appointed for life, "during 
good behavior," and that is de- 
signed to insulate them from social 
pressures and insulate them from 
polirical pressures. That insulahon is 
not given to them because the fram- 
ers of the Constitution admired 
judges or just wanted to favor them 
with lifetime tenure; it is given to 
them so they can act impartially, so 

"When you look back on it you say, 'Well, why did I do 
that?' And then you ask yourself, 'What alternative did I 

you think about this case?" I re- 
sponded to the effect that in my 
opinion discrimination on the basis 
of race in the use or availability of 
public facilities — and this certainly 
includes public transportation 
facilities — violates constitutional 
rights under the Fourteenth Amend- 
ment to the Constitution of the 
United States. The evidence was 
clear and really not controverted 
that these black citizens were being 
discriminated against in the use of 
these public facilities, and they were 
being discriminated against by a 
public entity, the city of 
Montgomery and the state of 
Alabama, in the use of these pubUc 
facilities solely because of their race, 
and I said, "If I can read the Consti- 
tution of the United States, that is 
unconstitutional. That's the way I 

And he said, "You are right"? 

That's right. These cases get easy 
when they were decided 25 to 30 
years ago, you know. 

There were some turbulent years 
for you as you pioneered in the civil 
rights area — a cross was burned on 
your lawn, your mother's home was 
dynamited. How did you cope with 
all this? 

The years were to some extent tur- 
bulent, but I had no difficulty coping 
with the problems. Federal judges 

they can decide cases as the facts 
and the law require they be decided, 
and in doing so do not have to fear 
any social, economic, or political 
pressures. Those protections make it 
easy for a judge, who has the desire, 
to correctly decide cases that involve 
constitutional principles on the basis 
of the Constitution. When a person 
accepts an appointment as a United 
States judge — district judge, circuit 
judge, or Supreme Court justice — he 
or she implicitly agrees with the 
government and the people of this 
country that if appointed as federal 
judge — to a position that gives a life- 
time tenure, that insulates from all 
of these pressures whether they be 
social, political, or economic — that if 
given these insulations he or she 
will decide the cases impartially; will 
decide these cases according to the 
Constitution, regardless of the con- 
sequences. That's always been my 
attitude. It still is, and vdth that atti- 
tude it is not difficult to cope with 
the cases even if they do involve 
some pressures. 

Did you lose some friends? 

Well, 1 have been asked that ques- 
tion many times. And this is not a 
trite answer. It's a real genuine feel- 
ing that if I lost any friends, the 
friends weren't worthy of being 
friends. If I lost them because of de- 
See JOHNSON, page 7 


OHNSON, from page 6 
dsions I made in cases that were ini- 
iated by parties over whom I had 
ID control, cases that concerned 
natters over which the court had ju- 
isdiction, cases that had to be 
lecided — it didn't bother me if 
omeone didn't like it. Some people 
till don't like some decisions that 
ederal judges make. That wasn't 
inique to the late 50s and the 60s 
nd the early 70s. 
I'd like to make a point before we 
?ave this question. Neither Mrs. 
jhnson, I, nor our son ever felt os- 
racized. We had and continue to 
ave very close friends throughout 
le state, throughout the South and 
le nation; people whom we wanted 
) be friends with and whose friend- 
lip we continue to enjoy and treas- 
re. As for people whom we didn't 
ant to be Mends with, we did our 
ivn ostracizing and we did even be- 
»re I became a federal judge and be- 
>re we moved to Montgomery in 
'55, and we still do. 

federal bench the same day I was 
sworn in as U.S. attorney in 1953. 
He was subjected to a lot of hassling 
up in the Birmingham area. The fact 
that I may have been subjected to 
some criticism in the press didn't 
make me unique, because other 
judges were being subjected to the 
same type of criticism. You might 
say we were all supportive of each 

Did you have any protection or 
court security in the 50s and 60s? 

We had very adequate security 
during what you referred to as the 
"turbulent years" in the late 1950s 
and 1960s. The U.S. Marshals Serv- 
ice was most supportive. You didn't 
have marshals who did not go into 
the courtroom then. They went into 
the courtroom in all instances. The 
FBI gave federal judges security if 
there was any indication that some 
federal law was being violated or a 
violation was contemplated. If we 
had a highly emotional situation or 
some situation that the Marshals 

'"The fact that I may have been subjected to some criticism 
in the press didn't make me unique, because other judges 
were being subjected to the same type of criticism/'