Full text of "The third branch"

See other formats

'6:

■'/.

':-^-%

UNIVERSITY OF iLLINOiS LIBRARY

AT UBBAfiA-CHAMPAIGN

LA.W

GOVTiOOc"

IINIVfRSITY OF IlllNfllS

APH i b 1990

LAW LiBiiARY

(lhjL\.^^

BULLETIN OF THE FEDERAL COURTS

//J-V/ irir

.THETHM) BMNCH

VOLUME 17
NUMBER 1
JANUARY 1985

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

HERTZBERG - NEW METHOD, INC. EAST VANDALIA ROAD,

T-0368 . 3000

ACCOUNT NO.

07200-:i.:l.3 -/

JACKSONVILLE. ILL.

LOT AND TICKET NO.

62650

i<>

% 4:-^-11 \THIRD

«• BRANCl-

tVV".^'

•I ".> .■,!■.

CLOTH COLOR

CHARGING INFORMATION

JG?UTO » 3/2 1 K-

■';j V... ;.-'tlO^Br

SPECIAL WORK AND PREP.

LAXi

HEIGHT

STUBBING

HAND SEW

THRU SEW

THRU SEW ON TAPE

HEIGHT

FRONT COVER

NO TRIM

PAGES LAMINATED

EXTRA THICKNESS

HAND ADHESIVE

LENGTHWISE

FOREIGN TITLE

LINES OF LETTERING

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

MAP POCKET PAPER

MAP POCKET CLOTH

SPECIAL WORK

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

ct.

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

REMOVE TATTLE TAPE

niiii

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.

iliii

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

DISK -C90032S REC . -099 FON T-3/238 PAGE-
KX9AT

T-0368»3000 07200-113 -1 CM 10- 41 P
43-11 THIRD K- BRANCH «•

<E*R* AB 1 THE«0
i^-'^i -I- 7-20W- 1 985-88 K-

J(»U10»3/2i»

1 7/ 1-20/1 2»

0015 PLEASE BD U/0 V , 17 1 1oSd'"In'^SP»^

11 1/8 9

LA>

11 1/f (

T-

(

BULLETIN OF THE FEDERAL COURTS

(l^\JL\^yL^-

//J-V/

ixii

BRANCH

VOLUME 17
NUMBER 1
JANUARY 1985

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
980.

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

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
esponsibilities?

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

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

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

THETHIRD BRANCH

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

theIHIRDbkanch

BULLETIN OF THE FEDERAL COURTS

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.

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

Noteworthy

• 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
drawn.

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\

BULLETIN OF THE
FEDERAL COURTS

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
executives.

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

MVWTWJy

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.

4it

Jan. 21-22 Judicial Conference
Committee on Court
Administration

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

Court
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

THETHIED BRANCH

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.

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

Noteworthy

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

theTHIRDbbanch

BULLETIN OF THE FEDERAL COURTS

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

laiiuii.

,^ i —

understa
structure
suiting f
describe
proceedi
tion, tra
and ban)
log num
is VJ-066

"The
ments,"
and Geo
and 40-1
views th
tural a
above, b
amendm

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. ■

BULLETIN OF THE
FEDERAL COURTS

Desk Book for
Chief Judges Published

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

Calendar

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
System

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
System

Jan. 21-22 Judicial Conference
Committee on Court
Administration

Jan. 21-22 Judicial Conference
Committee on Judicial Ethics

Jan. 23-24 Judicial Conference Im-

Jan.

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.

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

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

Court
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

theTHIRDbpanch

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-
tee.

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

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-
mendation.

See MOYE, page 5

BULLETIN OF THE
FEDERAL COURTS

/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
iredictors.

What about backlog or pending

caseload? Does that ever come into
play?

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-
tions.

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

court.

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

theTHMDbfanch

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
concept.

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
account?

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

BULLETIN OF THE
FEDERAL COURTS

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
20543.

» » »

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.

EQUAL OPPORTUNITY EMPLOYERS

theTHIRDbeanch

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
necessary.

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. '

BULLETIN OF THE
FEDERAL COURTS

Personnel

Appointments

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

Richard F. Suhrheinrich, U.S. Dis-
trict Judge, E.D. Mich., Oct.
23

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

Elevations

Harold A. Baker, Chief Judge, CD.

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

Hawaii, Nov. 30

THE BOARD OF THE
FEDERAL JUDICIAL CENTER

Chairman

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

Correction

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

Death

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
Administration.

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. ■

IheSourq

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
225.

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
(1984).

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
(1984).

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

THEIHIRD BRANCH

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
investigation.

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.

BULLETIN OF THE FEDERAL COURTS

theTHIEDbranch

First
Class
Mail

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

Courts

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

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

U.S. GOVERNMENT PRINTING OFFICE 1985-360-90'

4fA^///A

<2%.a^

BULLETIN OF THE FEDERAL COURTS

GQYl DOC.

IHeTH

BRANCH

VOLUME 17
NUMBER 2
FEBRUARY 1985

: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

years.

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
embers.

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
litigation.

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

theTHIRDbfanch

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 BRANCH 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

BULLETIN OF THE FEDERAL COURTS

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

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. '

BULLETIN OF THE
FEDERAL COURTS

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

TheSo

•URGE

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
courts.

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-
fense.

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
appeal.

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. ■

theTHIRDbsanch

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
change.

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-
ciency?

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

BULLETIN OF THE /liTK
FEDERAL COURTS '^XT

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
time.

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
workload.

See ROBINSON, page 6

theTHIRDbeanch

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
helpful.

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
arrived.

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
scrutiny.

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
improve/'

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

BULLETIN OF THE /Kp\
FEDERAL COURTS ^i^

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
security.

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
raptain.

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." ■

Calendar

Feb. 1-2 Judicial Conference
Committee on the Budget

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

Feb. 4-6 Civil Case Management
Workshop

Feb. 20-22 Seminar for Bank-
ruptcy Judges

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

theTHIRDbranch

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
compensation."

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

• Urged elimination of diversity
jurisdiction.

• 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
prisons.

• 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
appointed.

• 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
counsel.

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). ■

BULLETIN OF THE /ffA
FEDERAL COURTS '^IT

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
away.

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
monitors.

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-
ginia.

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
money.

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-^

THETHiro BRANCH

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
judge.

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
help?

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
rest.

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

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-
manding?

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
administration.

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
seniority.

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.
Judge?

Yes, I do.

Could you use three?

I think not. I couldn't use three.

-.11

BULLETIN OF THE y^tTK
FEDERAL COURTS **1**^

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
understood.

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
(1983).

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
(1983).

•'.■•x

theTHIEDbranch

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.
§49.

BULLETIN OF THE FtDERAL COURTS

theTHIEDbranch

Vol. 17 No. 2 February 1985

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

Official Business

First

Class

Mail

Postage and

fees paid

United States

Courts

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;

-3/2

BULLETIN OF THE FEDERAL COURTS

BRANCH

VOLUME 17
NUMBER 3
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
products.

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
production.

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
conflicts.

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
Congress.

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
opinions.

"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

THETHKD BRANCH

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). ■

THE

BRANCH

BULLETIN OF THE FEDERAL COURTS

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,
1X20005.

Co-editors

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
LAW DAY-U.S.A.

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. '

BULLETIN OF THE J^A
FEDERAL COURTS ***!**

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
?gon.

"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
years.

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
scholars.

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. ■

theTHIRDbranch

IheSource

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
(1984).

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
(1984).

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
(1984).

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
(1984).

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
immediately.

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. ■

Calendar

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.

BULLETIN OF THE /KfjK
FEDERAL COURTS ^XT

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
onviction.

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-

Personnel

appointments

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

levations

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. ■

Resignation

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

Death

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
faculty.

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

THETHIRD BRANCH

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
course.

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
answer.

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
Wilson?

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

BULLETIN OF THE
FEDERAL COURTS

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
'omen.

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-
on.

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
tne.

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
ws.

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.

movement.

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

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
practice.

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
state.

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

Yes.

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

THETHIRD BRANCH

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
satisfaction."

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
satisfaction."

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
was?

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?

BULLETIN OF THE
FEDERAL COURTS

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
idges?

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
:atus?

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
ourtroom.

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
courtroom."

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
world?

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
reports.

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
third.

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
required.

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 # ^^^

theIHERDbranch

Noteworthy

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
litigation.

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
help.

* * *

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
judges.

BULLETIN OF THt FEDERAL COURTS

theTHIRDbranch

Vol. 17 No. 3 March 1985

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

Official Business

First

Class

Mail

08595 G 000344 1
OOCU'IENTS DIVISION LAW LIBRARY
UN IV OF ILLINOIS COLLEGE L^M
504 EAST PENNSYLVANIA AVENUE
CHAMPAIGN IL 6 1 R20

Postage and

fees paid

United States

Courts

U.S. GOVERNMENT PRINTING OFFICE 1985-360-909-(ll)

'0.3/.

vlV^v-v4-^L

BULLETIN OF THE FEDERAL COURTS

f^'-

;<••'

[HeTI

BEANCH

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:; ■

NUMBER 4

y'<:<;Zy-'-

APRIL 1985

'^i^kii

^^^

■:;,.::.::v^|

^^^^^^^

• ■'■■•V--:; .

|||;xv:;>;

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
month.

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

'^9^5

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 ^

THE

BRANCH

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

funds.

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
convicted.

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

^ —

theTHIRDbbanch

BULLETIN OF THE FEDERAL COURTS

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

BULLETIN OF THE AtA
FEDERAL COURTS ^■'^

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
ctions.

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
executives.

• 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
courts.

• 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
AO.

• 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.

THETHiro BRANCH

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
process.

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
down.

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
horrendous.

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.

BULLETIN OF THE
FEDERAL COURTS

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
increase?

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
possible.

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

^>S)KaA

6 *

THE

BRANCH

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
another.

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

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

BULLETIN OF THE
FEDERAL COURTS

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
existence?

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
judiciary."

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
barbaric."

remains

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
legislatures.

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

theTHKDbranch

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
20005.

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
(1984).

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
(1984)

Jenkins, John A. "The Partisan: A

Talk with Justice Rehnquist." New
York Times Magazine, p. 28, Mar. 3,
1985.

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
(1984).

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-

ALENDAR

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
Defenders

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
(1984).

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
Judges

Apr. 17-19 Workshop for Training
Coordinators

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

Courts
Apr. 23-26 Video Seminar for Newly

Appointed Magistrates
Apr. 24-26 Pretrial Services Officer

Training
Apr. 28-May 1 Seminar for Newly

Appointed Federal Appellate

Judges

BULLETIN OF THE
FEDERAL COURTS

Spanish/English
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
found.

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
included:

• 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
terminations.

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

ERSONNEL

Nominations

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

Elevation

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

Death

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

THE

BRANCH

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

BULLETIN OF THE FEDERAL COURTS

theTHDORDbranch

Vol. 17 No. 4 April 1985

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

Official Business

First
Class
Mail

OB'jQb G 000515 1

nOQUMENi'S DIVISION LA ^__, ..
UNIV OF IlilNOlS C0LLFC3H LA*»
504 FASi Pr^NNSYLVANIA AVENUE
CHAMPAIGN IL ^1820

LIBRARY

Postage and

fees paid

United States

Courts

U.S. GOVERNMENT PRINTING OFFICE 1985-360-909-(12)

BULLETIN OF THE FEDERAL COURTS

theTH

fflOOL

BEANCH

VOLUME 17
NUMBER 5
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
grow.

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. Foley

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

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

\illiam h. Foley \^^' ^,> ^^ ^^^

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
Constitution."

• 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
court.

• 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

Joint-Calendar

Study Published p. 7

THE

BPANCH

OTEWORTHY

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

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
John."

• 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

theTHIRDbranch

BULLETIN OF THE FEDERAL COURTS

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.

Co-editors

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.
Courts.

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
(1984).

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-
0051.)

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
conference.

The steps taken to promote pri-
soner employment since then
include:

• 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
September.

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
address.

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
public.

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
research.

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."

'BRANCH

4 ^

THE

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
war.

How many languages do you

speak?

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

1946.

Can you tell us anything about the
cases you handled in the Criminal
Division?

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
contracts?

1 can't really say that. It's hard to
generalize.

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
world?

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
appointed.

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
Committee?

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
Conference?

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
administration?

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
assistant.

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
turndowns?

'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
budget.

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
Court.

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

THE

D BRANCH

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
them?

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
Congress.

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
staff.

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
courts.

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. *

Personnel

Nominations

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

Zonfirmations

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 BOARD OF THE
FEDERAL JUDICIAL CENTER

Chairman

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

EQUAL OPPORTUNITY EMPLOYERS

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

^ym

* .'\

^:^

■■^v^ii

ilm

''.y'/.s

THE

BRANCH

ALENDAR

May 6-8 Civil Case Management
Workshop

May 7-10 Video Orientation Semi-
nar for Newly Appointed Magis-
trates

May 12-14 Seventh Circuit judicial
Conference

May 12-15 Eleventh Circuit Judicial
Conference

May 14-18 Sixth Circuitjudicial Con-
ference

May 15-17 Workshop for Newly

Appointed Training Coordina-
tors

May 16-21 Seminar for Senior Staff
Attorneys

May 17 Federal Circuit judicial Con-
ference

May 19-21 D.C. Circuit judicial Con-
ference

May 19-22 Fifth Circuit judicial Con-
ference

May 20-22 Workshop for Fiscal
Clerks of Circuit, District, and
Bankruptcy Courts

May 28-31 Ninth Circuit judicial
Conference

May 29-31 judicial Conference Sub-
committee on judicial Improve-
ments

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
Training

June 6-7 judicial Conference Sub-
committee on Supporting Per-
sonnel

June 6-7 judicial Conference Advi-
sory Committee on Criminal
Rules

BULLETIN OF THI FEDERAL COURTS

theTHIRDbpanch

First
Class
Mail

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

Courts

US, COVERNMbNT PRINTINC OFFICF. 1985-360-909-(13)

BULLETIN OF THE FEDERAL COURTS

BPANCH

VOLUME 17
NUMBER 6
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
Commission.

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
its-ji^t.

,^-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. . .

P-

Chief Justice

Addresses Publishers

P-

Chief ludge Clark Opposes
Proposed Budget Cut

P-

theTHIRDbranch

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. ■

theTHIRDbranch

BULLETIN Of THE FEDERAL COURTS

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

Co-editors

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.
Courts.

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
employees.

Nominations

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

Confirmation

R. Allan Edgar, U.S. District Judge,
E.D. Tenn., Apr. 15

Appointments

Melvin T. Brunetti, U.S. Circuit
Judge, 9th Cir., Apr. 5

Frank H. Easterbrook, U.S. Circuit
Judge, 7th Cir., Apr. 10

Elevation

Harold D. Vietor, Chief Judge, S.D.
Iowa, May 1

Resignation

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

BULLETIN OF THE JfM,
FEDERAL COURTS ^J^

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
0 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
Goldstein.

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-
ation.

If Congress takes no action, the
rules become effective Aug. 1.

THETHIED BRANCH

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
broth."

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
settlements.

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
involved.

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
0 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
necessary?

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
frivolous."

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

BULLETIN OF THE ^fp\
FEDERAL COURTS ^±^

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

theTHIRDbeanch

Calendar

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
Training

June 6-7 Judicial Conference Subcom-
mittee on Supporting Person-
nel

June 6-7 Judicial Conference Advi-
sory Committee on Criminal
Rules

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-
tion
June 17-18 Judicial Conference Sub-
committee on Federal-State Re-
lations
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
Court

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
Conference

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

BULLETIN OF THE FEDERAL COURTS

theTHIRDbpanch

First
Class
MaU

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

Courts

U.S. COVERNMENT PRINTING OFFICE 1985-360-<509-(2)

BULLETIN OF THE FEDERAL COURTS

iheH

^m. O0C.

•■:'/,•

BRANCH

VOLUME 17
NUMBER 7
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
:hool.

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-
sion.

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-
sive.

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

".".>

s<::;w..

^>':-'-:

,' ,

■ .'A'/ •

•'f

■■:■:•:«'.■.■

'.•,

•.'. AV

'•^/vV.-. ■

:■ *i:««

-.•.^-'iaia

'*-.'

.y.-WM

■',

■.-rv:3B

;■•.<•;

theIHIRDbeanch

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-
ings.

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.

THETHIRD BRANCH

BULLETIN OF THE FEDERAL COURTS

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

Co-editors

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.
Courts

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. ■

BULLETIN OF THE /A
FEDERAL COURTS ^**

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-

FEGU

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
status?

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

ment.

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
lawsuits.

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

i:;^?v^?ii:^-:^

THEIHIRD BRANCH

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-
west.

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-
tions.

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
prisons?

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
prisoners?

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
bureau?

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
concerns?

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
sentencing."

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

BULLETIN OF THE
FEDERAL COURTS

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
lonstructively.

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
inmates,"

?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-
agement.

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
endeavor.

Can you make arrangements with
people in business to employ
prisoners?

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

'ij

theTHIRDbfanch

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
change?

I do. I realize it is controversial, but
in effect, the idea is "truth in sen-
tencing."

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
Atlanta."

prisoner complaints of unfair treat-
ment?

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

criminal?

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
incompetent.

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
officials.

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

BULLETIN OF THE /Kh.
FEDERAL COURTS ^1^

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.

Personnel

dominations

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,

S.D.N.Y.,Junel2
lonfirmations
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

appointments

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. ■

Calendar

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,

S.D.N.Y.,Julyl7
Deaths
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

Correction

John P. Moore was incorrectly identi-
fied last month as having been nomi-
nated to the D.C. Circuit, not the
10th Circuit.

July
July

July

Aug.

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
Conference

29-30 Judicial Conference
Committee on the Operation of
the Jury System
30-31 Judicial Conference
Committee on Court Adminis-
tration

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.

EQUAL OPPORTUNITY EMPLOYERS

rf,''.

',. •■"'■

•V-v

•y,.

■ ■:■:<■

theTHIRDbranch

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. ■

BULLETIN Of THE FEDERAL COURTS

theTHIRDbpanch

First
Class
MaU

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

Courts

U.S. GOVERNMENT PRINTING OFFICE 1 985-360-909-0)

V.^<

BULLETIN OF THE FEDERAL COURTS

theTH

BKANCH

■ I ■

VOLUME 17
NUMBER 8
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

982

to 19^^

V-J

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
bug?

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
children.

Were you in private practice,
Judge?

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
post."

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

theTHIEDbfanch

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
directorship.

Mr. Mecham was lured from the
private sector to the AO, he said,

theTHIRDbranch

BULLETIN OF THE FEDERAL COURTS

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

Editor
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
part."

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
courts.

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

BULLETIN OF THE ^^
FEDERAL COURTS ^^

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
'niversity.
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
disability-rights
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. ■

theTHIRDbranch

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
created.

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
bar.

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
lawyers."

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
it.

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
others?

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
jurtroom?

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
worthwhile?

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

BULLETIN OF THE AITK
FEDERAL COURTS ^i^

and said to me, "I want to thank you
for the fair trial you have given the
governor."

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-
tive.

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

theTHIRDbranch

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
me.

Did you have concern for yourself
and your family at home?
I did then.

Did you have U.S. marshal
protection?

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
days.

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 BOARD OF THE
FEDERAL JUDICIAL CENTER

Chairman

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,
1984.

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
percent.

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

Personnel

Nominations

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

BULLETIN OF THE /dTK
FEDERAL COURTS ^1*^^

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

Appointment

Walter K. Stapleton, U.S. Circuit
Judge, 3rd Cir., May 8

Elevations

Murray M. Schwartz, Chief Judge, D.

Del., May 8
Donald D. Alsop, Chief Judge, D.

Minn., May 20

Resignation

Abraham D. Sofaer, U.S. District
Judge, S.D.N.Y., June 9

The So

URGE

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
sentencing?

Well, it's not easy for me to sen-

System's Response." 68 Judicature 221
(1985).

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
(1984).

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
me.

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. ■

•>5:->:-:-';::-.

THETHIED BRANCH

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
(1985).

Lambros, Thomas D. "The Judge's
Role in Fostering Voluntary Settle-
ments." 29 Villanova Law Review 1363
(1984).

Nejelski, Paul, "Supplements to
Trial: A Court Administrator's
View." 29 Villanova Law Review 1339
(1984).

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).

Calendar

July 29-30 Judicial Conference
Committee on the Operation
of the Jury System

July 30-31 Judicial Conference
Committee on Court Adminis-
tration

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

BULLETIN OF THt FEDERAL COURTS

theTHIEDbbanch

First
Class
Mail

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

Courts

U.S. GOVERNMENT PRINTING OFFICE 1985-360-909 (4)

10.

C^VitUiC

BULLETIN OF THE FEDERAL COURTS

theTHIRDbeanch

muse.

VOLUME 17
NUMBER 9
SEPTEMBER 1985

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

WOids.

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*

theTHIHDbranch

CASELOADS, from page 1

one foot in the present and one in the

past."

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

THElHI^^ANai

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

Editor
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
judges.

"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
programs.

"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
improvement."

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

Calendar

Sept. 4-7 Tenth Circuit Judicial

Conference
Sept. 5-8 Second Circuit Judicial

Conference
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
Officers
Sept. 11-13 Seminar for Magis-
trates of the Fifth and
Eleventh Circuits
Sept. 16-19 Video Orientation for
Newly Appointed District
Judges
Sept. 16-19 Regional Seminar for

Probation/Pretrial Officers
Sept. 16-20 Video Orientation for
New Probation/Pretrial
Officers
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
Officers
Oct. 2-4 Juror Management
Workshop

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
months."

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. ■

BULLETIN OF THE £tl\
FEDERAL COURTS **X*

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
percent.

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
judiciary.

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
time.

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

THEIHIRD BRANCH

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
space.

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
area.

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
receipts."

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
years.

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

.y/,//.^

BULLETIN OF THE /fM
FEDERAL COURTS *rL*^

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
reasonable.

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
subcommittee.

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
time?

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
critical.

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
GSA.

If GSA simply does not have suffi-
cient money to complete a necessary
building, can your subcommittee
help?

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
extravagant?

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

THETHIRD BRANCH

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
that.

"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
Schaaf.

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
another?

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
place.

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

BULLETIN OF THE ,Ct7\
FEDERAL COURTS *r^

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
GSA.

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
expensive?

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;>; .

theTHIRDbpanch

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
(1985).

Feinberg, Wilfred. "The Office of
Chief Judge of a Federal Court of
Appeals." 53 Fordhcim Law Review 369
(1984).

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

(1985).

"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
(1984).

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.
10007.

Personnel

Nominations

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

Confirmations

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

Appointments

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

BULLETIN OF THE /f|7K
FEDERAL COURTS ^Jt

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

Elevations

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

Deaths

Thomas P. Thornton, U.S. District
ludge, E.D. Mich., luly 1

Harry Phillips, U.S. Circuit ludge, 6th
Cir., Aug. 3

Noteworthy

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 H.gh 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

theTHIRDbranch

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
facilities.

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
magistrates.

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). ■

BULIETINOF THE FEDERAL COURTS

theTHIRDbranch

First
Class
MaQ

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

Courts

US GOVERNMENT PRINTING OFFICE 1985-360-909-(5)

.10

BULLETIN OF THE FEDERAL COURTS

U\5

[heTHUDbranch

VOLUME 17
NUMBER 11
NOVEMBER IQSS

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
t.

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
eld.

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-
See BICENTENNIAL, page 2

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
Reexamined

Parole Commission
Issues Revised
Guidelines

p. 2

p. 3

:i>::Pi:>.::

::<!>}

THE

D BRANCH

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
included;

• 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
program.

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

theTHIRDbranch

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

Editor
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
1970s.

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
consideration.

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. ■

BULLETIN OF THE
FEDERAL COURTS

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
pact.

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
cases.

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
percent.

• 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
increases.

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
percent.

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
adults.

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
favorable.

The following table shows the new
guidelines issued by the Commission:

OFFENSE

OFFENDER CHARACTERISTICS: Parole

Prognosis

CHARACTERISTICS:

(Sa

ient Factor

Score 1981)

Severity of Offense

Very Good

Good

Fair

Poor

Behavior

(10-8)

(7-6)

(5-4)

(3-0)

Guid

eline Rangt

! (in Months)

Category One

< 4

< 8

8-12

12-16

Category Two

< 6

<10

12-lb

16-22

Category Three

<10

12-16

18-24

24-32

Category Four

12-18

20-26

26-34

34-44

Category Five

24-36

36-48

48-60

60-72

Category Six

40-52

52-64

64-78

78-100

Category Seven

52-80

64-92

78-110

100-148

Category Eight*

100+

120+

150+

180+

'No upper limits are specified because of the extreme variability of the cases within this
category.

4 #

THE

UTD

D BRANCH

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
maintained.

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
court?

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
jrisdiction.

Would concurrent jurisdiction
vHh the district courts make it eas-
sr for litigants to litigate closer to
ome?

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
tates.

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-

BULLETTNOFTHE /KtA
FEDERAL COURTS ^J^

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
countries."

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
courts?

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

THETHIFD BRANCH

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
brief.

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-
tribution.

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
monograph.

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

fairness?

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. •

BULLETIN OF THE
FEDERAL COURTS

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
rewarded."

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
nes.

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.N.J.
D. Md.
D.S.C.
E.D. Va.

N.D. Tex.
S.D. Tex.
W.D. Tex,

W.D. Ky.
W.D. Mich.
E.D. Tenn.
W.D. Tenn.

CD. III.
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.

THETHKD BRANCH

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. ■

Personnel

Nominations

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
expended.

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
fee.

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
trial.

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

Confirmations

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

Appointment

Louis L. Stanton, U.S. District Judge,
S.D.N.Y., Sept. 10

BULLETIN OF THE
FEDERAL COURTS

ALENDAR

Nov. 3-7 First Circuit Judicial

Conference
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

Rules
21-22 Seminar for Circuit

Executives
Dec. 2-4 Juror Management Work-
shop

^Jov.

vJo

Positions Available

Clerk, Tenth Circuit Court of Appeals,
Denver, Colorado. S.il.iry $52,2c>2 $68,700.
RiH|uirc-nifnts include 10 yi-.ir^' .ulniini^hM-
livi- rxpi-rii'nn' (i.uv pr.utm- ni.iy he biihsli-
tiiti'd fi)r Kfner.il .ulministr.itu c (■vpi-ni'iuf:
lolk-Ki' eiKii.ition am) JfHii'ts m piihlu bii^i-
nosb, judiii.il .idministr.Uioii, ,ind I.uv m.iy be
substituted p.irti.illy fcir neiieial .idniiiiibliM-
tive experifiue). Send resume (iinj;m.il .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

EQLM OIM'CIRTUMTY EMl'LOVERS

tiMi

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
(1985).

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,
1085.

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
(1085).

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,
1085.

Trangsrud, Roger H. "loinder Alternatives
in Mass Tort Litigation." 70 Cornell Law Review
770 (1085).

THE

BRANCH

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
serve.

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

BULLETIN Of THE FEDERAL COURTS

THElHDRD BRANCH

First
Class
Mail

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

Courts

U S (.OVrRNMF.NT PRINTING OFFICE ]P85-3t.0-P0O-(7)

ToT?

\Ll-t

BULLETIN OF THE FEDERAL COURTS

■^

niVH

BRANCH

VOLUME 17
NUMBER 12
DECEMBER 1985

: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
Education.

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-
dations.

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

^ ^

sS»

^ 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
Justice.

See MACKLIN, page 8

theTHIPDbranch

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
trials.

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

theIHIEDbranch

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

Editor
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
Resources.

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
warranted.)

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
discharged.

Judge A. Leon Higginbotham, Jr.
(3rd Cir.), dissented from the com-
mittee's report, in response to which
the committee filed an addendum. ■

BULLETIN OF THE /KtjK
FEDERAL COURTS ^Ir

Holiday Message from Chief Justice Warren E. Burger

As the close of this year approaches
t is appropriate that we pause a while

0 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-
nents.

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
acedure.

-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
individuals.

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.

Sincerely,

OS».*A-J<

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
Resources.

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). ■

THE

BRANCH

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
ictions.

'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

BULLETIN OF THE
FEDERAL COURTS

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
cases.

And don't you also get some
agency cases— from the Federal
Trade Commission and Securities
and Exchange Commission, for
example?

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

THE

BRANCH

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
do?

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

case.

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
caseload?

"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
iickly?

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
Education?

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

BULLETIN OF THE /KtjK
FEDERAL COURTS ^1^

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
should.

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

•»iMME

THETHIPD BRANCH

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)

Calendar

Dec. 2-4 Juror Management
Workshop

Dec. 9-10 ludicial Conference Sub-
committee on Judicial Statis-
tics

Dec. 9-10 Judicial Conference Sub-
committee on Federal Juris-
diction

Dec. 9-10 Judicial Conference Sub-
committee on Federal-State
Relations

Dec. 11-13 Judicial Conference Sub-
committee on ludicial Im-
provements

Dec. 11-13 ludicial Conference Sub-
committee on Supporting Per-
sonnel

IheSource

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
(1985).

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
(1985).

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
(1985).

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.

EQUAL OPPORTUNITY EMPLOYER

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. ■

rv-:-<^-;.

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
vacancies.

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
encounters.

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
law."

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-

BULLETINOFTHE AITN
FEDERAL COURTS ^i*^

liam Slate designed for the assistance
of the bar and public as well as the
judiciary.

(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. ■

'•' <;'. ■ ,

,-•

':'■':«

. ■^^■;

^^■^

s*.

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 0 wVii .^

THETHIRD BRANCH

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
Division.

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).

Personnel

Dickran M. Tevrizian, jr., U.S. Dis-
trict Judge, CD. Cal., Nov. 7

Nominations

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

Confirmations

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

Retirement

MilesW.Lord,U.S. District judge,D.
Minn., Sept. 11 (incorrectly
listed in October issue as
resignation)

Death

Edward W. Day, U.S. District judge,
D.R.L, Oct. 22

C|l

BULLETIN OF THE FEDERAL COURTS

THETHIRD BRANCH

First
Class
Mail

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

Courts

U.S. GOVERNMENT PRINTING OFFICE 1985-360-909-(8)

BULLETIN OF THE FEDERAL COURTS

iheH

■M- not.

BRANCH

^"^ \. 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-
sel

Advisory Committee on Experimentation in the
Law

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

12:3
4:1

12:5

11:10

6:2

11:3

:1;5:1

9:3

6:6

12:1

8:1

7:3

12:3

9; 9:3

3:2

1:1
3:3

3:3

11:6
12:9

9:2
10:1

8:3
3:10

1:9

3:2

5:2

12:9

Mediation program in E.D. Mich, described in FJC

report
National Institute for Dispute Resolution awards

grants
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
London

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
panel

Arbitration

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

9:3

1:3

6:1
5:3
3:2

12:2
3:1

6:3

4:3

6:3

10:1
12:9

10:7

10:3

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

6:6

Austria

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

8:3

Bankruptcy

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
Judges

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

3:3

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

12:9

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

Cases

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

Management
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.
tour

Circuit Executives

Eighth Cir. executive's office moved

4:3

7:1

3:2

12:1

4:1

9:7

5:7

6:2
4:2

9:10

6:7

12:7
2:8

10:3
2:3
2:3
2:3
8:6
4:3
3:2
3:5
4:2
4:2
3:5

4:2

12:2
3:10

1:3

6:3

11:8

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-
cation

Commission on Executive, Legislative, and Judi-
cial Salaries

Receives ABA report recommending increase in
judges' pay

4:3

8:2

4:3

7:2
1:3

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

10:2

6:1

Commission on the Bicentennial of the U.S.
Constitution

Chief Justice named chairman 8:2

Releases first report ni

Committee on Admission of Attorneys to Federal
Practice

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-

zone
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

5:2

10:1

12:5
2:12

11:7

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
judges

Corrado del Rio, Baltasar

Mayor of San Juan, P.R., welcomes attendees at 1st
Cir. judicial conference

Corrections

Bureau of Prisons Director Norman A. Carlson

interviewed in The Third Branch
National Center for Innovation in Corrections

established

Corrothers, Helen G.

Nominated to Sentencing Commission by Presi-
dent Reagan

Cotton, Stacey W.

Pictured at FJC seminar for new bankruptcy
judges

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
judges

Cummings, Walter J.

Seventh Cir. Chief Judge interviewed in The Third
Brnnch

4:2

10:2

4:3

11:9

12:9

7:1
5:3

10:1

11:9

11:7

4:3
11:1

11:7

11:9

6:1

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

Discovery

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

11:7

1:3

10:9
10:9

6.7
2:4

9:7

11:7

4:3
12:6

12:5

10:9
11:8

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

FJC
Referred to in Chief Justice's holiday message
Seminar on Crime Control Act of 1984 announced

4:1

6:3

12:3

1:1

See niso Publications and Cassettes; Seminars and
Conferences

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

FEGLI

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
States

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
AIMS

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

Interpreters

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

10:3
1:1

11:7

6:2

12:3

12:9

12:2

5:3
5:3
3:3

10:3

6:2

12:6
9:8

Judgeships

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

foundation
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.

Cummings
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

described
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

Fellow
1985-86 Judicial Fellows named

Judicial Immunity

State judges' immunity from liability for attorneys'
fees endorsed by judicial Conference

12-.4
1:4

4:3
4:3
6:3
4:3

11:10
1; 11:7

11:1

11:7

11:7
4:1

6:6

10:10

6:1

1:1

4:3

1:1

6:5
5:1

1:1
10:3

9:3

4:3
8:3

4:3

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
resolution

Judicial Salaries

ABA Federal Judicial Compensation Commission
recommends salary increases for Article III
judges

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-
tion

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
Commission

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

released
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

Lawyers

ABA forms commission to study issues affecting
lawyers' performance

Lay, Donald P.

Annual report on 8th Cir. released at Judicial

Conference
Chief Judge of 8th Cir. interviewed in The Third

Branch

3:2

3:10

6:1
10:2

4:3

3:2
2:8

1:2

3:2
10:2

10:2
8:5

1:2

12:1
10:3

8:3
4:1
3:2

5:3

12:9
4:1

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

authorized
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)

Magistrates

The Roles of Magistrates: Nine Case Studies published by
FJC

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
counsel

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

10:2

12:3

12:2

4:3
3:10

10:1

12:1
12:3
12:1

8:2

9:10

8:5

2:12
7:1

12:7

3:1

10:1
10:1

4:3

10:9

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

Mediation

Procedures in E.D. Mich, described in FJC report 3:2
W.D. Wash, procedure described i:9

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
conference

Women Judges

Referred to in interview with Chief Judge
Constance Baker Motley

Women's Rights

Referred to in interview with Judge Burnita
Matthews

Workload

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-
ment

Zheng Tianxiang

President of Supreme People's Court of P.R.C.
leads delegation of Chinese jurists on U.S. visit

7:6

10:10

10:2
10:1

3:2
2:8
9:7

9:2

12:8

3:6

4:9

9:3
1;6:3

9:1

12:2

6:3

BUIUTIN OF TOE FEDERAL COURTS

theTHIRDbbanch

First
Class
MaU

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

Courts

U.S. GOVERNMENT PRINTING OFFICE 1986-360-909-(13)

Vt.A.1,

BULLETIN OF THE FEDERAL COURTS

mi. ih£.

D BRANCH

VOLUME 18
NUMBER 1
JANUARY 1986

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
residence.

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 Advisory 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

theTHM)branch

ALENDAR

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
Conduct
Jan. 15-17 Seminar for Bankruptcy

Judges
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-
tion
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-
cuits
Jan. 23-24 Judicial Conference
Committee on Rules of Prac-
tice and Procedure
Jan. 27-28 Judicial Conference
Committee on the Judicial
Branch
Jan. 27-29 Judicial Conference Com-
mittee on Judicial Ethics
Ian. 27-29 Workshop for ludges
of the Ninth Circuit

THEIIIIRD BRANCH

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

Editor
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
program.

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
orders.

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). ■

BULLETIN OF THE
FEDERAL COURTS

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 BOARD OF THE
FEDERAL JUDICIAL CENTER

Chairman

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
country.

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
America.

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
excess.

"In carrying out his responsibilities
on the Supreme Court, Justice
Stewart was ever conscious of the
distinction between his personal

See STEWART, page 10

theTHKTDbpanch

WILKINS, from page 1

of office on Oct. 29. What have you
done thus far by way of
organization?

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
expertise.

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-
8800.

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
Commission.

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
profession?

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
frequently.

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
approval.]

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

BULLETIN OF THE /VfTK
FEDERAL COURTS '^X^

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

mmrsswn.

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
incarceration.

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

theTHIRDbeanch

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
another.

"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-
tences.

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
guidelines.

Perhaps you will be setting an
example.

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
challenge.

Everyone involved shares your
concern.

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
Commission?

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
society."

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.

BULLETIN OF THE /KfA
FEDERAL COURTS tL^

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
Carolina.

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
envelope.

Personnel

Nominations

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

THETHIHD BRANCH

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
loss.

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
much.

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.

lOUAl OITOKTUNITY FMI'IOYFRS

BULLETIN OF THE
FEDERAL COURTS

TiffiSoURCE

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
(1985).

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
985).

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
Personnel."

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 #

THE

BRANCH

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 judici.il
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

Confirmations

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

Death

Potter Stewart, Associate Justice,
Supreme Court of the United
States (Retired), Dec. 7

BULLETIN OF THE FEDERAL COURTS

THEIHIRD BRANCH

First
Class
Mail

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

Courts

U.S. GOVERNMENT PRINTING OFFICE 1986-360-P0P-(p)

Vc^

BULLETIN OF THE FEDERAL COURTS

T\\

«IM U

[HeTHIEDbranch

VOLUME 18
NUMBER 2
FEBRUARY 1986

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
functions.

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

theTHIRDbranch

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

THETHIRD BRANCH

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.

Editor
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
included:

• 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
commerce.

The above is a partial listing of the
contents of the entire Year-End

Personnel

Appointments

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

Resignation

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

Death

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
envelope).

BULLETIN OF THE /KfjK
FEDERAL COURTS ^1^

Russell Wheeler to Direct
Center's New Special
Educational Services
Division

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

Calendar

Feb. 9-15 Seminar for Newly
Appointed District Court
Judges

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
provision.

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
below.

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.

'■■■J

theTHIRDbranch

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
California.

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
courts.

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
contradictory.

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
attend?

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

BULLETIN OF THE
FEDERAL COURTS

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
House?

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
Fielding.

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
background.

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
Senate?

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
argument.

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

theTHIRDbpanch

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
budget?

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

BULLETIN OF THE /KfA
FEDERAL COURTS ^i*^

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
rule?

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
case?

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
sites.

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
development.

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.

theIHIRDbranch

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
differentials.

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-

Noteworthy

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

BULLETIN OF THE /f^
FEDERAL COURTS <^1^

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
70130.

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
70130

EQUAL OPPORTUNITY EMPLOYERS

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
method.

The paper includes tables setting
out the data derived from the survey
as well as the questions asked the
respondents.

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
issues.

TheS

OURCE

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
(1985).

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^ ^„,

THETHDRD BRANCH

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.

BULLETIN OF THE FEDERAL COURTS

THETHIED BRANCH

First
Class
Mail

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

Courts

U.S. GOVERNMENT PRINTING OFFICE 1986-360-909-(10)

^h^

BULLETIN OF THE FEDERAL COURTS

CL'\A^

•^^'l

fheH

BKANCH

VOLUME 18
NUMBER 3
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

0 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
ngress.

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
itule.

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
Recommendations

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
States.

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

theTHIRDbranch

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
subject.

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

theTHIKDbranch

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

Editor
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
three.

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
Minnesota.

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
reports."

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. *

BULLETIN OF THE /frtTK
FEDERAL COURTS ^X^

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. ■

Calendar

Mar. 4-7 Video Orientation Sem-
inar for Newly Appointed
Magistrates

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.
Circuits

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

Published

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
articles.

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
cumulative.

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.

theTHIRDbfanch

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
resources.

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
benefited.

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

BULLETIN OF THE
FEDERAL COURTS

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
must.

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
future.

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 ^

THE

BPANCH

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
America.

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

TiffiSo

BULLETIN OF THE
FEDERAL COURTS

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
(1985).

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
0575).

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
1985.

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

BRANCH

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
now?

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
Congress.

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
achieved."

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

Personnel

Nominations

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

Sidney

Appointments

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

Deaths

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.

EQUAL OPPORTUNITY EMPLOYER

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

BULLETIN OF THE /VtTK
FEDERAL COURTS TT^

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 BOARD OF THE
FEDERAL JUDICIAL CENTER

Chairman

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

theTHDDRDbranch'

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
this?

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
topics.

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. ■

BULLETIN OF THE f EDERAL COURTS

theTHBRDbbanch

First
Class
MaU

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

Courts

U.S. GOVERNMENT PRINTING OFFICE 1986-360-909-(ll)

BULLETIN OF THE FEDERAL COURTS

Lv^rij<

BBYl.^

iheTHIRDbranch

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

Q3.

-?rr

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

Inside

Canadian Judicial Centre
ABA Midyear Meeting . .

Federal Salary

Mechanism Modified

by Congress p. 3

li/-

THETHIMD BRANCH

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.

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." *

THETHIRD BRANCH

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

Co-editors

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
Committee.

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
universities.

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
arbitration.

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
Code.

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
privilege.

Copies of resolutions on these mat-
ters are available by contacting Alice
O'Donnell at the Federal judicial
Center. ■

BULLETIN OF THE /KtjK
FEDERAL COURTS ^1^

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
House.

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
Revenue.

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. ■

theTHDRDbranch

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
government?

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
today?

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
je.

^ow are cases assigned to the
Iges?

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.

attorney.

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
Code.

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

BULLETIN OF THE /^
FEDERAL COURTS ^l*^

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
work.

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 ^

THE

D BRANCH

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
that.

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

ERSONNEL

Nominations

]. 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

Confirmations

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

Elevation

C. Arlen Beam, Chief Judge, D. Neb.
Jan 7

Deaths

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

BULLETIN OF THE A|7\
FEDERAL COURTS ^X^

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
(PIMS).

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
managers.

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. ■

THETHIPD BRANCH

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-
5724.

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
20001.

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.

EQUAL OPPORTUNITY EMF'LOYERS

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
case.

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
tri.d.

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
question.

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

BULLETIN OF THE /KtjK
FEDERAL COURTS ^1^

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
e.

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
cases.

One of the ongoing discussions in
the legal profession involves a very
controversial subject: specialized
courts.

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
itself.

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.

ALENDAR

Apr. 2-4 Workshop for Judges of

the Fourth Circuit
Apr. 9-11 Seminar for Bankruptcy

judges
Apr. 9-11 Regional Seminar for
Federal Public and Commun-
ity Defenders
Apr. 13-16 Seminar for Newly
Appointed Federal Appellate
judges
Apr. 21-22 Judicial Conference
Advisory Committee on Civil
Rules
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 #

THETHIED BRANCH

JL HE 50URCE

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,
1985.

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
(1985).

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
(1985).

Leval, Pierre N. "From the Bench-
Westmoreland V. CBS." 12 Litigation 7
(1985).

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. ■

THE

BULLETIN OF THE FEDERAL COURTS

BRANCH

Vol. 18 No. 4 April 1986

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

First
Class
Mail

Postage and

fees paid

United States

Courts

Official Business

BULLETIN OF THE FEDERAL COURTS

rfvi. W^

iheH

BEANCH

VOLUME 18
NUMBER 5
MAY 1986

enneth C. Crawford Retires from FJC

W-^-f-ff

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

•6'
,v.

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
country.

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.
(1973-75).

Judge Cabranes is a graduate of
Columbia College (A.B.), Yale Law
School (J.D.), and Cambridge Uni-
versity (M. Lift, in International
Law).

Judge Cabranes has served as

public member of the United States

See CABRANES, page 9

BRANCH

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-

<$.

THETHIRD BRANCH

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.

Co-editors

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.
Courts.

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
year.

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.

BULLETIN OF THE AIA
FEDERAL COURTS ^J-^

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
judges.

• 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.

•<.;;■:;>;;;■ •■

^:;^M

v._.;.s^.;.;.;

1 t-.'vy-i-.

j;>:^>:.:-:

r<<.:: ;:,:;

■'■:■'/

'it3HiMM»x.'^'is(N<a«»<n

theTHIRDbeanch

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
functioning?

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-
what?

Personnel

Nominations

James L. Edmondson, U.S. Circuit
Judge, 11th Cir., Mar. 26

Andrew J. Kleinfeld, U.S. District
Judge, D. Alaska, Mar. 26

Confirmations

J. Daniel Mahoney, U.S. Circuit
Judge, 2d Cir., Mar. 27

Barbara K. Hackett, U.S. District
Judge, E.D. Mich., Mar. 27

Appointment

Walter J. Gex III, U.S. District Judge,
S.D. Miss., Feb. 25

Deaths

D. Dortch Warriner, U.S. District
Judge, E.D. Va., Mar. 17

Albert Tate, Jr., U.S. Circuit Judge,
5th Cir., Mar. 27

BULLETIN OF THE /f^tjk
FEDERAL COURTS *^1^

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
blem?

/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
ago.

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

theTHIRDbranch

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 BOARD OF THE
FEDERAL JUDICIAL CENTER

Chairman

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

Calendar

Apr. 29-May 2 Video Orientation
Seminar for Newly Appointed
Magistrates
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
Conference

May 11-14 Fifth Circuit Judicial
Conference

May 13-15 Regional Seminar for
Probation Pretrial Officers

May 14-16 Seminar for Training
Coordinators of the Eighth
Circuit

May 14-18 Sixth Circuit Judicial
Conference

May 18-20 D.C. Circuit Judicial
Conference

May 18-20 Seventh Circuit Judicial
Conference

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
Improvements

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
Dblems.

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

BULLETIN OF THE /KtTK
FEDERAL COURTS tL^

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
sentencing.

"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

THETHIRD BRANCH

HENNESSEY, from page 7

mulate national policies with regard
to matters affecting the state
judiciaries.

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
systems.

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
liability?

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
states.

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. ■

HE DOURCE

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
(1985).

"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
(1985).

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
announced.

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
Pittsburgh.

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

BULLETIN OF THE AITK
FEDERAL COURTS ^T^

'^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
riod.

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

NEWS

FROM

THE

Sentencing
Commission

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
results."

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
structured."

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. ■

^«4«^Q»$S^

10^

theTHIRDbeanch

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
held.

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. ■

BULLETIN OF THE FEDERAL COURTS

theTHM)branch

First
Class
Mail

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

Courts

U.S. GOVERNMENT PRINTING OFFICE 1986-491-221^0001

BULLETIN OF THE FEDERAL COURTS

iheTI

*aj0>Ci

BRANCH

VOLUME 18
NUMBER 6
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
litigated?

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

theIHIRDbfanch

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
courts.

Dr. Provine is associate profes-
sor of political science at the Max-
well School of Citizenship and
Public Affairs, Syracuse Univer-
sity.

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

THETHIRD BRANCH

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.

Co-editors

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.
Courts.

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-

Personnel

Nominations

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

Confirmations

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

Appointments

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

Elevations

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

Resignation

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

Deaths

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

BULLETIN OF THE A,
FEDERAL COURTS ^J^

>>::;^!^>$^;;;:X:;:::

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
rk.

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-
guidelines?"

he commission's statutory man-
e directs it to consider whether

Sentencing

NEWS

FROM

THE

Commission

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.
4(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
society."

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
offenders.

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
envelope.

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.

BRANCH

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
1954.

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
management?

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

Calendar

June 2-4 Regional Seminar for Pro-
bation Officers
June 9-10 Judicial Conference Sub-
committee on Judicial
Statistics
June 10-12 Regional Seminar for
Probation Officers

June 10-12 Workshop for Training
Coordinators of the Eighth
Circuit

June 12-13 Judicial Conference Ad-
visory Committee on Criminal
Rules

June 12-13 Judicial Conference
Subcommittee on Supporting
Personnel

June 16-17 Judicial Conference
Subcommittee on Federal
Jurisdiction

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
Courts"

June 18-19 Judicial Conference
Committee to Implement the
Criminal Justice Act

June 18-20 Seminar for Magistrates
of the Fifth and Eleventh
Circuits

June 19-20 Judicial Conference
Committee on the Adminis-
tration of the Bankruptcy
System

June 23-24 Judicial Conference
Committee on the Judicial
Branch

June 26-28 Fourth Circuit Judicial
Conference

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
System

BULLETIN OF THE /FfjK
FEDERAL COURTS ^i^

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
proof.

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
subcommittees.

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.

'.•■/^•■■■■■;' ■"

THEIHDRD BRANCH

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-
larly?

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
55175.

EQUAL OI'I'ORTUNITY
EMPLOYERS

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

BULLETIN OF THE
FEDERAL COURTS

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
ifted?

'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
receive.

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-
tion.

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
appendix.

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. ■

fl2.

THETHBRD BRANCH

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
sanctions.

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
helpful?

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
rules.

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. ■

BULLETIN OF THE AITK
FEDERAL COURTS ^i^

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
2m.

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

restrictions.

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
^nsibility.

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
1986).

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
pending.

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
disqualified."

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. ■

THETHM) BRANCH

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. ■

BULLETIN Of THE FEDERAL COURTS

theTHBRDbeanch

First
Class
Mail

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

Courts

U.S. GOVERNMENT PRINTING OIUCE 1986-491-221-40002

'3/:^-

BULLETIN OF THE FEDERAL COURTS

[HE THUD BKANCH

-"n M.

VOLUME 18
NUMBER 7
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
respect.

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
ified."

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 #

THE

BEANCH

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.

theTHIRDbranch

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.

Co-editors

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.
Courts.

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
Cir.)

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

standards.

Chief Judge Wilfred Feinberg (2nd

Cir.)

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
judiciary.

Chief Judge Harrison L. Winter (4th
Cir.)

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-

BULLETINOFTHE /ftA
FEDERAL COURTS ^J-^

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

wm^

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^

THE

BRANCH

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.

Sentencing

NEWS

FROM

THE

Commission

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
effect."

When do the guidelines become effec-
tive?

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

guidelines?

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
crime?

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
type.

"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
oz.).

: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-
es;

• 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
August.

The Chief Justice also cited a re-
cent lecture by ALI member Daniel
Meador, a University of Virginia law
professor, who said, "The American

BULLETIN OF THE /TITK
FEDERAL COURTS ^i^

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
arbitrator.

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

theTHIRDbranch

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
days.

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.

BULLETIN OF THE /fiTK
FEDERAL COURTS ^i*^

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

THETHIRD BRANCH

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
footsteps.

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
level.

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-
tions?

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-
ers.

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
30303-3147.
EQUAL OPPORTUNITY EMPLOYERS

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.

BULLETIN OF THE /VfTK
FEDERAL COURTS '^]9^

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

10^

THETHIRD BRANCH

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
motions.

"My main goal is to be an
efficient chief judge "

Have you used rule 11 to impose
sanctions very often in the D.C.
Circuit?

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

BULLETIN OF THE
FEDERAL COURTS

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
schools?

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

Personnel

Nominations

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

Confirmations

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

Appointments

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

Retirement

Warren E. Burger, Chief Justice of
the United States, July 10, or as
soon thereafter as a successor is
qualified.

12^

theIHIPDbranch

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
age.

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
:ir.)

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
/ell.

:hief Judge James R. Browning (9th
:ir.)

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-
ation.

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
Cir.)

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
him.

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
remarkable.

BULLETIN OF THE /KtjK
FEDERAL COURTS *^i^

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
(D.N.M.)

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

14^

theIHIRDbpanch

SENTENCING, from page 4

Will present prison capacity be the
controlling factor in drafting the guide-
lines?

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
Center.

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
revocation.

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

BULLETIN OF THE /kH.
FEDERAL COURTS ^^

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. ■

Calendar

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

Conference
July 11-13 Seminar for Training
Coordinators of the Seventh
Circuit
July 14 Judicial Conference Advi-
sory Committee on Codes of
Conduct
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

Conference
July 28-29 Judicial Conference
Committee on Court Admin-
istration
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-
tem

16 fi>iw _ .^^.^_,__^ ""~~^~"^~^~"^~^~"

theTHIRDbranch

TheSource

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,
1986.

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
(1985).

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
(1986).

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
(1985-86).

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
(1985).

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
(1986).

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
(1985).

"Symposium: Gerrymandering anc
the Courts." 33 U.C.L.A. L. Rev. 1-28:
(1985).

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)."

BULLETIN OF THE FEDERAL COURTS

THElHiro BRANCH

First
Class
MaU

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

Courts

U.S. GOVERNMENT PRINTING OFFICE 1986-491-221^0003

»0 , 3/5

BULLETIN OF THE FEDERAL COURTS

h^)ii^ liilii.

THE THUD BRANCH

VOLUME 18
NUMBER 8
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.
25.

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.

See BICENTENNIAL, page 8

THETHIRD BRANCH

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

Sentencing

NEWS

FROM

THE

Commission

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

THETHIRD BRANCH

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.

Co-editors

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.
Courts.

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
imprisonment."

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
See SENTENCING, page

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:
building.

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
Published

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
published.

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.
Browning.

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

BULLETIN OF THE /VtA
FEDERAL COURTS ^J-^

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
chief.

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.

EQUAL OPPORTUNITY EMPLOYERS

iiii

! I

4 A , ^

iheTHQ

BRANCH

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
Conference.

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
Conference.

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
immediately?

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
space?

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
schedule?

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
authority."

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
1987?

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

BULLETIN OF THE /KfA
FEDERAL COURTS ^1^

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

theTHIRDbpanch

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
matters?

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
one.

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
ourts?

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

BULLETIN OF THE /CtTK
FEDERAL COURTS ^i<*

initiate impeachment procedures in
the House against a federal judge.
Will the AO get involved in any
way?

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
changed?

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

v<^'c;:

theTHIRDbranch

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-
ministration.

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. '

BULLETIN OF TWL FEDERAL COURTS

theTHIRDbranch

First
Class
Mail

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

Courts

U.S. GOVERNMENT PRINTING OFFICE 1986-491-221-40004

^hV

BULLETIN OF THE FEDERAL COURTS

.^<^^' .Oib^

IHEH

BtkNCH

ssfu-m

VOLUME 18
NUMBER 9
SEPTEMBER 1986

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
program.

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

THE

BRANCH

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

NEWS

FROM

THE

Sentencing
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
possible."

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

theTHIRDbranch

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.

Co-editors

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 BOARD OF THE
FEDERAL JUDICIAL CENTER

Chainnan

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. ■

BULLETIN OF THE -A
FEDERAL COURTS ^^

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-
tion.

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
Branch).

On August 6, members of the

House of Representatives formally

See IMPEACHMENT, page 12

4 * ..^^

theTH

JOHNSON, from page 1

BRANCH

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

BULLETIN OF THE JKtjK
FEDERAL COURTS *rL^

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 *

THE

BRANCH

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
have?'"

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
vote."

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

BULLETIN OF THE
FEDERAL COURTS

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
other.

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/'

Were your colleagues on the
inch supportive? Did any of them
me and say, "I know you are go-
g through a lot"?

Well, it's hard for one judge to
ipport another judge. You know
ey know what the problems are,
lu know they know what the duty
that's on the judge to decide the
se. They know that he didn't ini-
ite the litigation or formulate the
iues. Judge Rives and I were very
)se friends, and my wife and Mrs.
ves were very close. Judge Lynne
id I were always friends and we
11 are. I started trying cases in the
deral court before Judge Lynne.
i went on the bench ten years he-
re I did, so I've always admired
^ as a judge and as a person, and
i have always been very close,
dge Hobart Grooms was and is a
)se friend also. He went on the

Service or the FBI thought was vola-
tile and the risk was pretty high, we
had officers who afforded the neces-
sary security. After my father died,
my mother's home was dynamited,
and there was no question but that it
was dynamited because I had and
have the same name as my father
and his address was listed in the tel-
ephone book; the bombing was de-
signed to intimidate and harass me.
The FBI and the marshals gave my
mother protection for as long as she
would tolerate it. She said they kept
her awake at night slamming doors
and shining lights around the
house. She eventually requested that
they be removed from the immedi-
ate area.

Do you think there are issues to-
day that are as emotional as the civil
rights cases?

Absolutely. For example, death

penalty cases are just as emotional.
Judges are still subjected to criticism
based in whole or at least in part on
an emotionalism that attends the de-
cisions when federal judges set aside
convictions in death cases and order
retrial. The criticism is sometimes
See JOHNSON, page 8

Study of Standard Pretrial
Procedures Published

The Center recently published
The Use of Standard Pretrial Proce-
dures: An Assessment of Local Rule
235 of the Northern District of
Georgia, by Carroll Seron of the
Center's Research Division.

In January 1985, judges in the
Northern District of Georgia
adopted local rule 235, which
applies a standard pretrial proce-
dure to nearly all cases filed in the
district. The rule requires lawyers
to hold a settlement conference
and provide a certificate of settle-
ment activity, a preliminary state-
ment of the case as it stands after
the settlement conference, a list of
all interested parties that discloses
potential conflicts, and a final
pretrial order on an established
form. The rule was adopted as part
of a general revision of the dis-
trict's rules; other rules cover such
matters as discovery limitations
and motions practice. Local rule
235 is a clear example of a court's
effort to comply with the require-
ments of rule 16 of the Federal
Rules of Civil Procedure while
minimizing the early involvement
of judges.

The paper describes the factors
that led to the district's decision to
standardize its procedures and the
steps taken to bring the changes
about. A primary goal of the paper
is to present the judges' assess-
ment of the various aspects of their
program based on one year's expe-
rience with it. Judges considering
changes in their case management
practices may find the Georgia ex-
perience instructive.

Copies of the report can be ob-
tained by writing to Information
Services, 1520 H St., N.W., Wash-
ington, DC 20005.

theTHIRDbranch

ERSONNEL

Nominations

Richard B. McQuade, Jr., U.S. Dis-
trict Judge, N.D. Ohio, July
28

Joel F. Dubina, U.S. District Judge,
M.D. Ala., July 30

James K. Porter, U.S. District Judge,
E.D. Tenn., July 30

Confirmation

Daniel A. Manion, U.S. Circuit
Judge, 7th Cir., June 26

Appointments

Con. G. Cholakis, U.S. District

Judge, N.D.N.Y., May 29
Robert J. Bryan, U.S. District Judge,

W.D. Wash., June 2
Lawrence P. Zatkoff, U.S. District

Judge, E.D. Mich., June 6
James L. Edmondson, U.S. Circuit

Judge, 11th Cir., June 9
Nicholas Tsoucalas, Judge, U.S.

Court of International Trade,

June 11

Nomination Withdrawn

Jefferson B. Sessions III, U.S. Dis-
trict Judge, S.D. Ala., July 31

Elevations

John F. Grady, Chief Judge, N.D.

m., July 1
Ralph G. Thompson, Chief Judge,

W.D. Okla., July 1
John P. Fullam, Chief Judge, E.D.

Pa., July 20

Senior Status

Wendell A. Miles, U.S. District

Judge, W.D. Mich., May 9
Robert E. Varner, U.S. District

Judge, M.D. Ala., June 12
Luther B. Eubanks, U.S. District

Judge, W.D. Okla., June 30
Frank J. McGarr, U.S. District Judge,

N.D. 111., June 30

Deaths

James A. Coolahan, U.S. District
Judge, D.N.J. , July 16

Alfred L. Luongo, Chief Judge, E.D.
Pa., July 19

Edwin D. Steel, Jr., U.S. District
Judge, D. Del., July 27

JOHNSON, from page 7

just as vitriolic, just as severe as it
was in any desegregation case 1 ever
had.

Would you please comment on
the Alabama prison system and the
cases that came before you in 1975.

The state of Alabama is not re-
quired under the state constitution
or the federal Constitution to oper-
ate a prison system; no state is so re-
quired by law. As a practical matter
they are required to operate some
kind of penal system; however, if
they do, they are required to operate
it without violating basic constitu-
tional rights as guaranteed by the
Eighth Amendment. A state cannot
treat prisoners in a cruel and
inhuman manner and the evidence

lem comes and thaf s where a judge
really gets involved insofar as the
state's financial ability to eliminate
the violahons is concerned. But as it
turned out Alabama solved its
prison problems. It has imple-
mented all of the minimum stand-
ards that I ordered implemented.
Those standards were designed to
eliminate these Eighth Amendment
violations. Alabama has gone fur-
ther than that and built new prisons
that 1 didn't even envision at the
time, and it now has one of the
finest state penal systems in the
United States.

How long did it take?

It took about 10 or 12 years. But it
took 100 years for the conditions to
get to the point that they violated

"A judge must, in order to afford some relief, devise some
means whereby there is within a reasonable time the
elimination of the conditions that give rise to the
violations of the constitutional rights."

in the ]ames v. Wallace, Pugh v. Locke,
and Newman v. State of Alabama
prison cases in Alabama, when the
cases were heard, reflected that the
conditions incident to incarceration
in the larger Alabama prisons were
clearly violative of the Eighth
Amendment to the Constitution,
and the defendant's lawyer — the
governor's lawyer — after the fourth
or fifth day of taking testimony got
up in open court and said, "Judge,
we acknowledge that the operation
of the prisons in Alabama is viola-
tive of the Eighth Amendment to the
Constitution of the United States."
Well, a federal judge cannot if he is
going to afford any rehef to the par-
ties say, "Well, I'll enter an order
finding that you are in violation of
the Eighth Amendment to the Con-
stitution." What relief do the prison-
ers get from that? A judge must, in
order to afford some relief, devise
some means whereby there is within
a reasonable time the elimination of
the conditions that give rise to the
violations of the constitutional
rights. And that's where the prob-

the Eighth Amendment; under such
circumstances you cannot expect to
eliminate those conditions over-
night.

Why did you elect to appoint a
committee instead of a special mas-
ter to monitor the standards you es-
tablished for the prisons?

1 appointed what I called the hu-
man rights committee to monitor the
implementation of the minimum
standards that I determined to be
necessary; I entered a very detailed
court decree after the constitutional
violations were found. I had found
that in litigation involving the opera-
tion of state institutions such as
mental hospitals and prisons de-
tailed mandatory injunctions were
necessary.

How did you select the commit-
tee? Were they from various
disciplines?

Yes, they were. The committee in-
cluded physicians, attorneys, educa-
tors, minorities, law enforcement of-
ficers, maintenance experts,
sociologists, psychologists, counsel-
See JOHNSON, page ?

BULLETIN OF THE /dTN
FEDERAL COURTS *^1^

OHNSON, from page 8

rs, labor officials, and, most impor-
ant, homemakers and mothers,
/ho can detect physical and mental
idignities quicker than most. I let
he parties suggest people who
i^ould be appointed — both sides.

Were there newspaper people,
iho might be able to explain it in
rticles?

Yes, and they did. They shed a lot
f light on the situations in the
labama prison system and the
lental health system. A district
idge owes it to himself and the
)urt upon which he serves to pro-
■ct the office he holds and he has to
?ep himself in a position of being
)le to enforce his decree; the worst
ling that can happen to a district
idge is to enter a decree and not
\force it. If he ever does that, he's

bad shape as far as the enforce-
ent of his future decrees is
•ncemed.

What were the major parts of the
large to the human rights
immittee?

1 first gave them the background
the cases and explained why I

id entered a court order enjoining
e state of Alabama officials from
iling, within the times prescribed,
implement certain minimum
mdards designed to eliminate the
regious constitutional violations
en in existence in the state prison
stem. I pointed out that at the
nclusion of seven days of trial,
unsel for the state defendants
Jted to the court: "Your Honor,
e defendants in this case, the
abama Board of Corrections and
I'eral of its officers, rest their case
this time. They rest their case
sed upon the amended complaints
ed and upon the overwhelming
ijority of the evidence, which
ows that an Eighth Amendment
)lation has and is now occurring
inmates in the Alabama Prison
stem."

[ also explained to the members of

2 committee that "an Eighth
nendment violation confession
;ans that the state of Alabama in

the operation of its prison system
throughout the state is operating the
system in such a manner as to treat
those incarcerated in the Alabama
prisons in a cruel and inhuman
manner. In spite of some of the pub-
lic reactions of one or more state of-
ficials to this court order, it must be
kept in mind that the court order
was not only based upon the over-
whelming evidence but was based
upon over 1,000 stipulated facts, tes-
timony of Alabama Prison Commis-
sioner Sullivan, and the confession
of cruel and inhuman conditions as
made by the counsel that repre-
sented all of the state defendants."
The committee's responsibilities
were then spelled out, caUing their
attention in particular to their re-
sponsibility to monitor implementa-
tion of the prison standards estab-
lished by the court and to determine
whether conscientious efforts on the
part of prison officials were being
made to comply with the standards.
This part of the charge reads: "You
should also take particular notice
that you have a further duty and au-
thority to monitor the implementa-
tion of the standards set up by this
court in Newman v. Alabama, a copy
[of which] was handed to you [and
which] is concerned with the inade-
quacy of medical treatment provided
prison inmates in Alabama's prison
system."

The Tenth Amendment to our
Constitution, which reserves powers
not expressly granted to the federal
government for the states, was
called to their attention. The charge
explains, however, that this amend-
ment "does not relieve the states of
a single obhgation imposed on them
by the Constitution of the United
States." I had no hesitancy as a fed-
eral judge in saying this, and in
adding, "The history of federal liti-
garion, parricularly for the last 20
years in this state, is replete with in-
stances of state officials who could
have chosen one of any number of
courses to alleviate unconstitutional
conditions of which they were fully
aware, and who chose instead to do

Annuities Program
Amended

President Reagan has signed
into law H.R. 3570, amending 28
U.S.C. § 376 to reform and im-
prove the federal justices and
judges' survivors annuities pro-
gram (Pub. L. 99-336). The amend-
ments become effective Oct. 1,
1986. For a description of the pro-
visions of the bill, see June The
Third Branch.

nothing Consequently, the fed-
eral courts time after time have been
required to step into the vacuum left
by the state's inaction. It must be
added that these cases rarely come
as a surprise to anyone, because
they are generally filed and decided
only after the aggrieved parties have
exhausted all hope of vindicating
their rights through other channels."

I frankly told the membership of
this committee that their "job is not
going to be an easy one. Several in-
stances will illustrate the pervasive
and gross neglect of prisoners' medi-
cal needs which prevails within the
Alabama prison system."

1 then cited specific instances of

maltreatment or lack of treatment —

See JOHNSON, page 10

ALENDAR

Sept. 4-7 Second Circuit Judicial
Conference

Sept. 10-12 Workshop for Clerks of
U.S. District Courts

Sept. 15 Judicial Conference Ad
Hoc Committee on Inns of
Court

Sept. 18-19 Judicial Conference of
the United States

Sept. 21-23 Third Circuit Judicial
Conference

Sept. 22-27 Seminar for Newly Ap-
pointed U.S. District Court
Judges

Sept. 24-26 Workshop for Bank-
ruptcy Chief Deputy Clerks

theTHIHDbeanch

JOHNSON, from page 9
in some instances, the patient/
prisoner had even died as a direct
result of inhumane conditions, in-
cluding unsanitary living conditions,
unsanitary food storage and prepa-
ration, stench, and dangerously ex-
posed electric w^ires. A major
problem — overcrow^ding — was espe-
cially called to the committee's
attention.

The charge concluded with: "The
selection of the members of this Hu-
man Rights Committee was not at
random. You were selected because
of your dedication to a humanitarian
concept that human beings must not

Noteworthy

Recommendations on prison in-
dustries. The recommendations of
the National Task Force on Prison
Industries have been published by
the National Center for Innovation
in Corrections (NCIC), located at
George Washington University in
Washington, D.C. The task force
was formed in 1984 and convened
under the guidance of Chief Justice
Burger and the Brookings Institution
in 1985. Its 50 recommendations
concern such issues as the role of
the public sector, private industry,
and labor unions in the prison in-
dustries concept; the payment of
prevailing wages to inmates for pro-
duction meeting private sector
standards; and possible union mem-
bership for inmates.

The foreword to the task force's
report. National Conference on Prison
Industries: Discussions and Recommen-
dations, notes that "a new, enlight-
ened, public-private partnership is
the key to restoring prison indus-
tries to the wide level of employ-
ment it enjoyed a century ago —
without the exploitation and
inefficiencies."

Copies of the report are available
from NCIC, George Washington
University, 2130 H St., N.W., Room
621, Washington, DC 20052. ■

be treated as animals, and in a cruel
and inhuman manner, by other hu-
man beings. You were selected be-
cause of the expertise that you pos-
sess in various fields and endeavors,
which expertise will enable you to
intelligently evaluate, weigh, and
monitor the implementation of these
court orders. And so I say to you to-
day: proceed with dignity and cour-
tesy in your relationship with the
penal officials but proceed with firm-
ness and resoluteness, keeping your
eyes on the polestar, i.e., the elinu-
nation of the existing inhumane and
barbaric conditions in the Alabama
penal system."

[The Newman and Pugh cases were
appealed to the Fifth Circuit. The
circuit court approved the steps
taken by the court "to ensure rea-
sonably adequate food, clothing,
shelter, sanitation, necessary medi-
cal attention, and personal safety for
the prisoners" and to generally bring
about improved conditions in the
Alabama prison system; the court
held that the judge's mandates were
"justifiably invoked" and within the
"sound discretion" of the district
court to cure Eighth Amendment vi-
olations. The opinion disapproved
the Human Rights Committee, how-
ever, stating that "a less intrusive,
more effective approach would have
been to name one monitor for each
of the prisons . . . with fuU authority
to observe, and to report his observa-
tions to the Court, with no authority
to intervene in daily prison opera-
tions." Newman v. State, 559 F.2d
283, 290 (5th Cir. 1977) (emphasis in
original). Judge Johnson's charge to
the committee is available from the
FJC's Information Services.]

Did you get involved in the split
of the Fifth Circuit?

Yes. We first started talking about
splitting the circuit back in 1977, and
the proposal at that time was to di-
vide into four states and two
states — Louisiana and Texas were to
be one circuit and Mississippi,
Alabama, Georgia, and Florida were
to constitute the other circuit. I was
a district judge then, but it was ap-

parent to me that such a division
was both philosophically and geo-
graphically bad. I thought that it
might have been, whether I was
right or wrong, an effort to divide
because of some racial problems and
because of some rulings some of the
old Fifth Circuit judges were making
that maybe some congressmen were
not liking. So I opposed it at that
time, but when it came on later 1
was, as a circuit judge, designated
by the Fifth Circuit to be a spokes-
man for the circuit after the judges
passed a resolution requesting Con-
gress to split the circuit three/three,
and I appeared and testified before
the Kastenmeier subcommittee in
support of the split. So I was very
much involved.

You have established a reputatioii
for being a good manager. Do you
have any innovations for manage-
ment techniques to recommend to
new judges coining into the system?
I think a judge must be a good ad-
ministrator, particularly the chiei
judge in a district court. He cannol
leave court administration up tc
someone else. A court won't admin-
ister itself. Good court administra-
tion is critical to the operation of c
good court. Chief Justice Burger rec
ogruzes this. He's one of the finesi
court administrators we have evei
had, and he insists on good couri
administration at every level of the
federal judicial system. Chief Judgf
John Godbold of the Eleventh Cir
cuit is a crackerjack court adminis
trator. And it results in the Eleventh
Circuit's being one of the best rur
circuits in the country. You can tel
that h-om the statistics that are regu
larly distributed by the Administra
tive Office. One of the basic ap
proaches to being a good cour
administrator is case management
You manage a case from the day if;
filed until it's disposed of. You don'
leave it up to court employees to d(
the case management — except to im
plement the court policies.
Especially the lawyers?
Well, as a general observation
See JOHNSON, page 1

BULLETIN OF THE
FEDERAL COURTS

)HNSON, from page 10

ey won't. That's the problem that
•me district courts experience in al-
wing the lawyers to bring the case
I for trial when they get ready. A
)od docket clerk will keep the
dge to whom a case is assigned
•prised of the date of the filing, the
ite that the answer is due, the date
at the motion to dismiss is filed,
id that case is automatically put on
regularly scheduled motion calen-
ir for submission of those motions,
hen the case is ripe for pretrial, it's
tomaticaUy put on a pretrial calen-
ir and doesn't just sit there. I
and it absolutely necessary to be a
se manager when I was a district
dge.

Are there some areas in the fed-
il court system you would like to
s changed?

iiVhat we need to do is to improve
idency and effectiveness and cut
necessary cost in the operation of
; courts without affecting the qual-
' of the work of the court. One
;a where money could be saved is
the administration of the bank-
ptcy court system. Currently, as
u know, bankruptcy employees in
ch judicial district are under the
pervision of a separate bankruptcy
irk rather than the clerk of the
irt. If the bankruptcy employees
Te under the supervision of and
egrated into the office of the clerk
the district court, this would elim-
»te duplication of equipment, es-
cially all the automation equip-
?nt. In administration, it would
minate that duplication. You'd re-
ce the need for a substantial num-
r of employees, and I would guess
it consolidating would result in a
dngs to the court system in excess
a million dollars a year. Unfortu-
tely, this may not be possible. In
1923 the Senate has said that
;re can be no such consolidation
thout the approval of the Judicial
inference and the Congress. I
pe this court administration pro-
iption will not become law.
flabeas corpus filings in the fed-
il courts continue at a high rate.

Do you believe the habeas corpus
filings will always be with us?

Yes. The roots of the Great Writ of
Habeas Corpus can be traced back
further than the Magna Carta, to the
twelfth century or earlier. Through-
out English history, prior to the
birth of this country, the writ was
used to free prisoners who had been
imprisoned arbitrarily and, there-
fore, without due process of law.
The writ was later incorporated in
Article I of the federal Constitution
and in many state constitutions. Al-
though some of the states omitted
the writ from their constitutions, the
most plausible explanation for their
omission is that the writ was too
fundamental to be questioned.

Today, the writ provides the pri-
mary mechanism for the vindication
of federal constitutional rights. In
the first place, federal courts have
more experience than state courts in
dealing with federal issues, and
therefore are generally more compe-
tent to decide issues of federal law.
Also, federal judges, unlike most
state judges, are given lifetime ten-
ure, which insulates them from local
politics and adverse popular opin-
ion. Many elected state judges have
proved reluctant to overturn convic-
tions even where the prisoner was
clearly denied due process. Over-
turning a conviction is often an un-
popular and misunderstood decision
than can cost an elected state judge
his job. The availability of the fed-
eral habeas writ guarantees that a
prisoner can present his constitu-
tional claims to a tribunal that is not
subject to the same kind of political
pressure.

Certainly the habeas writ entails
costs; by providing a forum where
prisoners can vindicate meritorious
federal claims, federal courts are re-
quired to entertain many nonmeri-
torious or even frivolous claims. But
it is a cornerstone of our system of
justice that we are willing to pay
great costs to avoid condemning in-
nocent persons. In order to ensure
that innocent people are not arbitra-
See JOHNSON, page 12

Hri'

IhE 50URCE

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 mailing label, pref-
erably franked (but do not send an envelope), and
addressed to Federal Judicial Center, Information
Services, 1520 H Street, N.W., Washington, DC
20005.

Aldisert, Ruggero J. "The House of the
Law." 19 Loyola of Los Angeles L. Rev. 755
(1986).

Alschuler, Albert W. "Mediation With
a Mugger: The Shortage of Adjudicative
Services and the Need for a Two-Tier
Trial System in Civil Cases." 99 Harvard
L. Rev. 1808 (1986).

"Annual Eighth Circuit Survey." 19
Creighton L. Rev. no. 4 (1985-86).

Bennett, Steven. "Summary Disposi-
tion of Appeals: Lessons from the D.C.
Circuit." 30 St. Louis University L.J. 463
(1986).

Breger, Marshall J. "The APA: An
Administrative Conference Perspective."
72 Virginia L. Rev. 337 (1986).

Funke, Gail S. (ed.). National Confer-
ence on Prison Industries: Discussions and
Recommendations. National Center for In-
novation in Corrections, George Wash-
ington University, 1986.

Gallant, Kenneth S. "Judicial Rule-
Making Absent Legislative Review: The
Limits of Separation of Powers." 38
Oklahoma L. Rev. 447 (1985).

Gross, Leonard E. "Judicial Speech:
Discipline and the First Amendment." 36
Syracuse L. Rev. 1181 (1986).

"In Tribute to John Minor Wisdom."
60 Tulane L. Rev. 231 (1985).

Kilgarlin, William W., and Jennifer
Bruch. "Disqualification and Recusal of
Judges." 17 St. Mary's L.J. 599 (1986).

Lay, Donald P. "Exhaustion of Griev-
ance Procedures for State Prisoners Un-
der Section 1997e of the Civil Rights
Act." 71 Iowa L. Rev. 935 (1986).

Marshall, Prentice. "Some Reflections
on the Quality of Life of a United States
District Judge." 27 Arizona L. Rev. 593
(1985).

Mikva, Abner J. "The Changing Role
of Judicial Review." 38 Administrative L.
Rev. 115 (1986).

Weiner, Charles R. "From the Bench:
Concentrating on Cooperation." 12 Liti-
gation 5 (Winter 1986).

12^

theTHDRDbeanch

JOHNSON, from page 11

rily condemned, our Constitution
guarantees that every defendant has
the right to due process of law. This
right is equally strong — even where
there is overwhelming evidence of
guilt. Without the habeas writ, the
right to due process would be seri-
ously eroded and, in many cases,
empty. If the preservation of the
Great Writ requires the expenditure
of a large amount of judicial re-
sources, that is a cost that our soci-
ety traditionally has been, and
should always remain, willing to
pay. ■

IMPEACHMENT, from page 3
presented the articles of impeach-
ment to the Senate. The Senate
Rules Committee is expected to
work out the procedural rules to be
followed in Judge Claiborne's Senate
trial, which is unlikely to begin be-
fore mid-September. ■

BANKRUPTCY, from page 1

would cost about half that amount.

Current U.S. trustee proposals
would increase assessments against
estates to pay the additional costs, a
policy decision for Congress, Judge
DeMascio noted. "Whatever system
the Congress may develop for in-
creasing assessments could as easily
be applied against the costs of the
Judicial Conference's proposed
bankruptcy administrator." Finally,
"Bankruptcy cases are filed with and
are pending before the courts. It
makes no sense to call upon another
branch of the government to 'admin-
ister' cases pending in the judicial
branch. Such a diffusion of basic re-
sponsibilities in bankruptcy cases
can only lead to confusion as judges
attempt to manage their dockets
while U.S. trustees are independ-
ently administering the underlying
estates."

The Conference's proposal for

bankruptcy administrators provides
for their appointment by the courts
of appeals, much as federal defend-
ers are now appointed, thus guaran-
teeing the independence of the ad-
ministrators. In a recent survey of all
circuit and district judges and all
bankruptcy judges, the respondents
overwhelmingly favored a program
in the judiciary rather than the De-
partment of Justice.

"The courts have certainly never
been given the opportunity to dem-
onstrate our ability to operate a simi-
lar program, with a full range of
powers, and to have that experience
compared to the U.S. trustee pilot
program by an independent agency
such as the GAO," Judge DeMascio
said.

On Aug. 17 the Senate made its
version of the bill (see June The Third
Branch) an amendment to the House
bill and requested a conference. The
Senate version lets courts opt out of
the trustee program. I

BULLETIN OF THE FEDERAL COURTS

theTHIEDbeanch

First
Class
Mail

Vol. 18 No. 9 September 1986

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

Official Business

Postage and

fees paid

United States

Courts

U.S. GOVERNMENT PRINTING OFFICE 1986-491-221^0005

\%/lO

BULLETIN OF THE FEDERAL COURTS

^r^

Mli-V rvH

o: -:

•,V.' .-.

IHE THIRD BBANCH

VOLUME 18
NUMBER 10
OCTOBER 1986

Jenate Judiciary Committee Member Discusses
federal Courts' Role, Specific Legal Issues

Semior Orrin G. Hatch (R-Utah) is
he fourth-ranking Republican on the
enate Judiciary Committee, and with
xe upcoming retirements of Senators
iathias and Laxalt will rank second. He
His first elected to the U.S. Senate on
^ov. 2, 1976, and reelected in 1982.
mator Hatch is chairman of the Senate
ommittee on Labor and Human Re-
mrces and of the Senate Judiciary Com-
ittee's Subcommittee on the Constitu-
on. He is a graduate of Brigham Young
niversity (B.S.) and the University of
ittsburgh (LL.B.) and practiced law in
tah and Pennsylvania.
You wrote several years ago that
le matter of attorneys' fees had
Jtten out of hand. Do you plan a
gislative initiative on this issue?
Many share the view that fee-
tifting htigation has gotten out of
md. A recent Supreme Court opin-
n noted that litigation over fees

"serves no productive purpose, vin-
dicates no one's civil rights, and ex-

Senator Orrin G. Hatch

acerbates the myriad problems of
crowded appellate dockets." Much

koler to Head FJC Education & Training Div.

The Board of the Federal Judicial
?nter has unanimously approved
e appointment of Daniel L. Skoler

Daniel L. Skoler

be the director of the Center's Di-
sion of Continuing Education and

Training. He succeeds Kenneth C.
Crawford, who retired in May (see
The Third Branch, May 1986).

Mr. Skoler brings to the Center ex-
tensive experience in judicial educa-
tion and administration, serving as
executive director of the National
Council of Juvenile and Family
Court Judges from 1962-65, then as
assistant director of the American
Judicature Society and executive di-
rector of the American Bar Associa-
tion's Commission on Correctional
Facilities and Services and its Com-
mission on the Mentally Disabled.

He directed the Department of
Justice's block grant program under
the Omnibus Crime Control and
Safe Streets Act of 1968. More re-
cently, he has served as deputy as-
sociate commissioner of the Office of
Hearings and Appeals at the Social
Security Administration and then as
*a^^ee SKOLER, page 2

of this litigation arises because the
operative language of the fee-
shifting statutes simply discusses
the award of reasonable fees without
any standards or guidance as to
what is a reasonable fee. Now my
Subcommittee on the Constitution
has held several hearings on the Le-
gal Fees Equity Act, which would
codify many standards developed by
recent Supreme Court cases and also
set a generally applicable cap of $75
See HATCH, page 4

Judicial Pay, Marshals
Service Bills Pending

The following legislative items are
of interest to the judiciary.

• Senator George J. Mitchell
(D-Me.) has introduced a bill,
S. 2691, to allow federal judges to re-
ceive the same pay increases as are
granted for all other federal employ-
ees. Senators Ernest Hollings
(D-S.C.) and Lloyd Bentsen (D-Tex.)
are cosponsors of the bill. This bill
would serve to correct what Senator
Mitchell has characterized as a "hur-
dle of affirmative congressional ac-
tion" that only judges and "no other
federal employee need face" to ob-
tain pay increases. The "hurdle" is
section 140 of Pub. L. 97-92, enacted
in 1981, which excludes judges from
the Executive Salary Cost-of-Living
Adjustment Act provisions applica-
ble to other high-level federal offi-
cers. That measure was enacted fol-
lowing what Senator Mitchell
See LEGISLATION, page 7

;<S":

Inside . . .

Sentencing Commission

News

P-2

WIm

Judicial Fellows Named .

p. 3

■#--x:

Reports on Circuit
Judicial Conferences . . .

p. 3

HI'

State Judge Not
Immune from Suit

p. 3

^^^^^.•;

■1

2 ^ ^_^

theTHIRDbranch

Judges Asked to Submit Comments on Guidelines

The Sentencing Commission is so-
liciting written comments on its pre-
liminary draft guidelines, which
were to be published in the Federal
Register in September and sent to
each federal circuit and district
judge. Critical analysis of the draft
and the issues it raises will help the
commission as it drafts its final

Sentencing

NEWS

FROM

THE

Sentencing Commission hearing in
the city nearest to them. All hear-
ings will begin at 10 a.m. and will be
held in each city's ceremonial court-
room in the federal courthouse, ex-
cept in New York City, where the
hearing will be held in Courtroom
318 of the federal courthouse. The
public comment period will close at
the end of the Washington hearing
in December.

Commission

guidelines in early 1987. Federal
judges and all others interested in
the administration of criminal justice
are encouraged to study the prelimi-
nary draft guidelines and submit
their comments to the commission
at 1331 Pennsylvania Ave., N.W.,
Suite 1400, Washington, DC 20004,
Attention: Guidelines Comments.
Comments should be received by
Dec. 3.

As reported in recent issues of The
Third Branch, the commission will
also hold public hearings on the pre-
liminary draft guidelines, starting in
Chicago on Oct. 17, to be followed
by hearings in .New York City on
Oct. 21, Atlanta on Oct. 29, Denver
on Nov. 5, San Francisco on Nov.
18, and Washington, DC, on Dec.
2-3. The Judicial Conference has au-
thorized the chief judge of each cir-
cuit to designate a circuit judge and
a district judge to participate in the

theTHIRDbranch

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.

Co-editors

On Sept. 23, 1986, the Sentencing
Commission held a hearing in
Washington, DC, on the proper role
of plea agreements in a sentencing
guidelines system. The hearing was
the fifth in a series addressing topics

of importance in the development of
the guidelines.

The guidance the commission
gives sentencing judges on plea
agreements is especially important
because approximately 90 percent of
federal criminal cases are presently
disposed of by guilty pleas. The leg-
islative history of the Sentencing Re-
form Act reflects congressional con-
cern that plea agreements should
not be used to circumvent the
sentencing guidelines. Witnesses at
the Sept. 23 hearing addressed the
questions of the appropriate limits of
judicial scrutiny of negotiated plea
agreements and the impact of
guidelines on "charge bargaining"
under Fed. R. Crim. P. 11(e)(1)(B)
and "sentence bargaining" under
Fed. R. Crim. P. 11(e)(1)(C). ■

ABA Supports Civil RICO Reform, Grand Jury
Procedural Protection Bill, Other Proposals

The American Bar Association at
its annual meeting this summer ap-
proved several resolutions of interest
to the federal courts.

• The ABA supported a proposed
amendment to "civil RICO" provi-
sions that would change the defini-
tion of "pattern of racketeering activ-
ity" to require that the alleged acts
be shown to be part of a continuing
scheme or plan of criminal activity,
to increase to five the number of
criminal acts that must be alleged in
wire and mail fraud cases, and re-
duce to five years the time period
over which the alleged acts must
have occurred. The provision would
make Fed. R. Civ. P. 65 appUcable to
RICO with respect to granting
injunctive relief and would provide
that a party who brings a frivolous
or bad faith suit shall be subject to
costs and attorneys' fees.

• The ABA endorsed that portion
of the King Committee report that
encourages law schools to continue
improvements in practice-oriented
legal education. The ABA urged
U.S. district courts, however, not to
require trial experience until the Ju-
dicial Conference is able to verify

empirically that such measures do in
fact improve the quality of advocacy.
• The ABA supported pending
legislation, H.R. 5367, to provide
stronger sanctions for violations of
grand jury procedural rules. For ex-
ample, in United States v. Mechanik,
106 S. Ct. 938 (1986), the Supreme
Court held that although Fed. R.
Crim. P. 6(d) (which provides that
only one witness may be present in
the grand jury room at any time)
had been violated by the joint testi-
mony of two law enforcement
agents before the grand jury, it was
"harmless error," precluding a re-
See ABA, page 8

SKOLER, from page 1

chairman of the Trademark Trial and
Appeal Board in the Department of
Commerce.

A 1952 graduate of Harvard Law
School and a practitioner with a
New York firm for seven years, he
has lectured and written extensively
on law-related subjects and judicial
administration. His book Organizing
the Non-System: Government Struc-
turing of Criminal Justice Systems was
published in 1977. ■

— 3

Bonventre, Hodson Chosen to Be Judicial Fellows

Vincent Martin Bonventre and
rhomas S. Hodson have been se-
ected as Judicial Fellows for

198^-87.

Vincent Bonventre

Vincent Bonventre is a graduate of
nion College and Brooklyn Law

School, and holds an M.A. in gov-
ernment from the University of
Virginia. He is a Ph.D. candidate at
U. Va., writing a dissertation on the
free exercise of religion, and has
served as an assistant professor of
government there. He was criminal
trial counsel with the Judge Advo-
cate General's Corps in 1977-80
while holding the rank of captain in
the U.S. Army. At the time of his
application to the Judicial Fellows
program, Mr. Bonventre was law
clerk to Judge Matthew J. Jasen of
the New York Court of Appeals. He
will be assigned to the FJC's Re-
search Division.

Thomas Hodson at the time of his
application was a judge of the
highest level trial court in Ohio. A
graduate of Ohio University and of
the Ohio State University College of
Law, he was first elected to the
bench in 1979. He has experience in

BULLETIN OF THE
FEDERAL COURTS

print and broadcast journalism, has
been a visiting professor at the
Scripps School of Journalism at Ohio
University, and has taught or partic-
ipated in numerous programs on ju-
dicial education and court/media re-

lations. He will be assigned to the
Supreme Court. ■

Listices, Legislators, Panelists Speak at Recent
ederal Circuit Judicial Conferences

The Fourth, Eighth, Ninth, and
?nth Circuit Judicial Conferences
ere held recently. Participants ad-
■essed a wide range of topics af-
cting the courts' work.
• Chief Justice Warren E. Burger
Idressed the Fourth Circuit confer-
ice in White Sulphur Springs, W.
i. Other speakers included law
ofessors Irving Younger of the
diversity of Minnesota and
urens Walker of the University of
rginia, who spoke on the relation-
ip between law and the social sci-
ces. There were also presentations
I attorney-client privilege. New
dges of the circuit were intro-
ced, and a panel of academics re-
!wed major Supreme Court deci-
ins of the October 1985 term.
► The Ninth Circuit conference in
n Valley, Idaho, had as its theme
? public's view of how the court
iducts its business. Justice Byron
White, Attorney General Edwin

Meese, III, and Representative Neal
Smith (D-Iowa) were among the

conference's special guests. Rep.
Smith (chairman of the House Ap-
propriations Committee's subcom-
mittee on appropriations for the de-
See CIRCUITS, page 8

State Court Judge Held Not Immune from Suit

A state court judge was not im-
mune from suit under 42 U.S.C.
§§ 1981 and 1983 in a case alleging vi-
olations of a court employee's civil
rights, the Seventh Circuit held re-
cently in McMillan v. Svetanoff, 793
F.2d 149 (7th Or. 1986).

The case arose when the newly
elected judge of an Indiana county
superior court took office and dis-
missed his entire courtroom staff, in-
cluding McMillan, a court reporter.
She sued, alleging that she had been
dismissed because she was black and
a Democrat. The district court denied
the judge's motion to dismiss, and
the Seventh Circuit affirmed. "Immu-
nity is only granted when essential to
protect the integrity of the judicial
process," the circuit court noted, say-
ing that courts must be "hesitant in

applying the doctrine [of judicial im-
munity] to judges acting outside the
traditional dispute resolution func-
tion." "Hiring and firing of employ-
ees is typically an administrative
task" rather than one that "implicates
the judicial decisionmaking process."
The circuit court distinguished its
earlier decision in Forrester v. White,
792 F.2d 647 (7th Cir. 1986), a case
that held a judge was immune from
suit for firing a probation officer. In
Forrester, "because the probation offi-
cer advised the judge on substantive
decisionmaking, the judge's own dis-
cretion was sufficiently at risk to fall
within the [judicial immunity] doc-
trine's purpose Because court re-
porters are not similarly situated such
analysis is not dispositive" in the
McMillan case, the court said.

4 S

THE

BRANCH

HATCH, from page 1

per hour on fee awards. According
to expert witnesses, this will suffice
to attract competent attorneys to
meritorious suits while avoiding
windfalls for attorneys in protracted
litigation over fee amounts.

In the Harvard Law Review, you
recently warned against politiciza-
tion of the process of approving Su-
preme Court nominees. Would you
comment on the nomination process
as you see it at this juncture?

Injecting political considerations
into the confirmation process tends
to make the judiciary just another
political branch of government. If
the Senate treats the judiciary Uke
another political branch, it will take
on that character in the eyes of the
public. The judiciary's nonpoHtical
role, which has been the basis of its
independence and prestige, should
not be jeopardized by partisan
considerations.

With regard to President Reagan,
most presidents who have served
two terms have had a greater impact
on the judiciary than Reagan, as
have several who have served even
less time. For instance, Woodrow
Wilson served eight years. He ap-
pointed 50 percent of the federal
judges. Eisenhower served eight
years; he appointed 69.9 percent.
Roosevelt — thirteen years — ap-
pointed 77.3 percent. Nixon served
six years and appointed 45.2 per-
cent. Johnson, five years, appointed
almost 54 percent. Kennedy — three
years — 37.4 percent. Carter — four
years — 39.1 percent, and Rea-
gan— five and a half years — 36.2 per-
cent. Should President Reagan finish
out his term, by the end of 1988 he
could approach 50 percent, which
would put him on the order of, say,
Woodrow Wilson or even Lyndon
Johnson.

In terms of quality, Reagan's
judges have also been excellent. Giv-
ing three points for each exception-
ally well-qualified judge, two points
for every well-qualified, and one
point for every qualified (according

to the ABA ratings), Reagan has a
1.61 rating for all Article III judges,
which is slightly ahead of Carter's
1.60 rating. So he's done very well
there.

How is the Senate Judiciary Com-
mittee responding to the increased
emphasis on alternative dispute
resolution?

Given the growing chorus of au-
thoritative voices seeking tort reform
and the pressures on all court dock-
ets, we must encourage responsible

alternatives. In the long run, how-
ever, even alternatives like arbitra-
tion are only going to work if the
courts remain available as the ulti-
mate resolvers of disputes. The judi-
cial branch serves the irreplaceable
function of being the final backstop.

In June, the Senate Judiciary
Committee approved legislation to
create an intercircuit tribunal, but
with modifications. Chief Justice
Burger has said he cannot support
the bill in its present form. Is there
a version of the bill you favor?

The Chief Justice withdrew his
support from the bill after the
DeConcini amendment was adopted
on a nine-to-eight vote. Senator
DeConcini's amendment expanded
the panel to thirteen members, who
were to be chosen by their respec-

tive circuits, rather than nine mem-
bers chosen by the Supreme Court. I
voted against this amendment. In
my opinion, the panel is only likely
to reduce the Court's burden if it has
the Court's trust. If the panel is not
reflective of the Supreme Court it-
self, the Court will be reluctant to re-
fer many cases and will feel com-
pelled to give detailed review to the
panel's product. Thus, a panel that
does not have the Court's full trust
could actually increase the Court's
caseload. Since this was to be merely
a temporary experiment, it made
sense to let the Court try a system
with which it would be most
comfortable.

Do you favor the creation of spe-
cial courts — for example, an Article
I court to handle Social Security
cases?

We hear often about a proposed
Social Security court, because there
are approximately 1.3 miUion com-
plaints filed every year under this
program. Moreover, I have heard es-
timates that a significant
percentage — as much as 15 to 20
percent of our federal court
caseload — is derived from Social Se-
curity cases. The House subcommit-
tee considered the idea of a special
court in 1982 but the bill died in sub-
committee. It failed, as I understand
it, because it was an expensive pro-
posal whose ability to reduce the
federal court caseload was severely
questioned. Our American system of
justice has avoided the specialized
court systems customary in Europe
for good reasons. Courts attuned to
narrow issues become little more
than bureaucrats administering a
special program for a target constihi-
ency. We expect our judges to re-
solve disputes according to broader
and more equitable constitutional
and legal principles.

As chairman of the Senate Judici-
ary Committee's Subcommittee on
the Constitution, give us your
thoughts on the likelihood of any
constitutional amendments in the

foreseeable future.

See HATCH, page 5

HATCH, from page 4

Well, first the balanced budget
amendment that passed the Senate
in 1982: It failed by one vote in 1986.
Unbalanced budgets for 27 of the
last 28 years demonstrates the need
for constitutional reform. History in-
dicates that the Nation's founders
considered a balanced budget an un-
written constitutional principle.

Another possible constitutional
amendment concerns school prayer:
rhere are few areas of constitutional
idjudication which are more con-
•used. For instance, the wall-of-
ieparation doctrine has fostered a
:limate of government hostility to-
vard our traditional heritage of reli-
fious faith, and there is a need to re-
tore the correct vision of the First
^endment.

I think there are a lot of other pos-
ible subjects as well. For instance,
he issue of abortion: I believe that a
onstitutional amendment may be
le only way to give legislative bod-
's and the people a role in resolving
le issue of abortion. The Equal
ights Amendment is another sub-
■ct. Some feel that this proposal
lould have been the Twenty-
'venth Amendment, but others feel
lat it would have judicialized and
itionalized vast areas of decision
aking now handled by state, local,
\d federal legislative and executive
)vernments. There are whole
)lumes written on that issue. We
?ld over twelve hearings on the
iA and were startled to find out
^at the ERA really would mean in
nstitutional terms.
Electoral college reform is still
Bntioned on occasion. There are
ose who want direct election of
e president. On the other hand,
? electoral college does prevent a
igle populous region from
3turing the presidency,
rhese, 1 would say, are the best
ig shots for a new amendment to
' Constitution. Who knows? There
y be others.

3o you favor a "balanced budget"
istitutional amendment?

Yes. Every state save one has such
a requirement, and they have
worked very well to control deficit
spending. Deficits are linked to high
taxation, inflation, and unemploy-
ment, factors which gradually erode
our national strength and freedoms.
You favored several years ago a
bill to withdraw the jurisdiction of
lower federal courts to issue any or-
der "requiring the assignment of
students to schools on the basis of
race or which has the effect of
excluding any student from any
public school on the basis of race."
Do you still favor such legislation?
The bill to which you refer, S. 37,
is currently pending on the Judiciary
Committee calendar after receiving
four-to-one approval in the Subcom-
mittee on the Constitution. S. 37,
the Public School Civil Rights Act,
does not deprive any court of au-
thority to hear and decide cases. It
merely employs Article III and sec-
tion five of the Fourteenth Amend-
ment to withdraw the discriminatory
remedy of forced busing from the
quiver of remedies to be deployed in
discrimination suits. This is in no
way novel. The Norris-LaGuardia
Act withdrew injunctions as a rem-
edy in certain labor disputes; the Tax
Injunction Act and the Johnson Act
also withdrew certain remedies with
regard to state taxation and regula-
tory pohcies. These and numerous
similar laws have consistentiy been
upheld as constitutional.

On a related issue, I recently
voted against an amendment to
deny the Supreme Court any appel-
late jurisdiction over school-prayer
cases. For many reasons, I felt that it
was not prudent for Congress to cir-
cumscribe the Supreme Court's ap-
pellate jurisdiction in this manner.

In your opinion, should the fed-
eral courts have their diversity juris-
diction removed as a means for cop-
ing with the caseloads?

I think most trial lawyers — those
who really have tried cases through
the years — would be very loath to
see federal diversity jurisdiction

BULLETIN OF THE
FEDERAL COURTS

taken away from the federal courts.
There is a lot of justice which has

See HATCH, page 6

Personnel

Nominations

Diarmuid F. O'Scannlain, U.S. Circuit

Judge, 9th Cir., Aug. 11
James L. Graham, U.S. District Judge,

S.D. Ohio, Aug. 15
Frederic N. Smalkin, U.S. District Judge,

D. Md., Aug. 15
James R. Spencer, U.S. District Judge,

E.D. Va., Sept. 9

Appointments

William H. Rehnquist, Chief Justice of
the United States, Sept. 26

Antonin Scalia, Associate Justice, Su-
preme Court of the United States,
Sept. 26

D. Lowell Jensen, U.S. District Judge,

N.D. Cal., June 27
Stephen F. Williams, U.S. Circuit Judge,

D.C. Cir., June 29
Patricia C. Fawsett, U.S. District Judge,

M.D. Fla., June 30
Alan E. Norris, U.S. Circuit Judge, 6th

Cir., July 1
David Hittner, U.S. District Judge, S.D.

Tex., July 1
John E. Conway, U.S. District Judge,

D.N.M., July 3
William W. Wilkins, Jr., U.S. Circuit

Judge, 4th Cir., July 10
Karen L. Henderson, U.S. District

Judge, D.S.C., July 11
Andrew J. Kleinfeld, U.S. District Judge,

D. Alaska, July 14
Edwin M. Kosik, U.S. District Judge,

M.D. Pa., July 15
Alfred J. Lechner, Jr., U.S. District

Judge, D.N.J. , July 15
John G. Davies, U.S. District Judge,

CD. Cal., July 18
Douglas P. Woodlock, U.S. District

Judge, D. Mass., July 21
William D. Stiehl, U.S. District Judge,
S.D. 111., Aug. 1

Elevations

Paul H. Roney, Chief Judge, 11th Cir.,

Sept. 3
Solomon Blatt, Jr., Chief Judge, D.S.C.,

Aug. 18
William J. Bauer, Chief Judge, 7th Cir.,

Sept. 29

theTHIRDbfanch

HATCH, from page 5

occurred as a result of that ability to
go to the federal courts rather than
the state courts in true diversity
cases. I, for one, would not want to
see diversity jurisdiction removed.

Are there changes you would like
to see in the Freedom of Informa-
tion Act?

Last Congress, the Senate passed
my Freedom of Information Act Re-
form Act unanimously. This bill was
drafted to offer more protection to
confidential law enforcement in-
formants and investigations. No
fewer than five detailed studies have
documented that FOIA could be
"used by organized crime to evade
prosecution and retaliate against in-
formants." Those are the words of
the Violent Crime Task Force. In ad-
dition, the bill offers some proce-
dural protections for business trade
secrets and personal privacy of indi-
viduals about whom the federal gov-
ernment keeps extensive files. The
FOIA is another statute which
would not generate as much litiga-
tion if its broad language were
clarified— as my bill intends to
accomplish.

The new extradition treaty be-
tween the U.S. and Great Britain
would take away the authority of
U.S. judges to refuse extradition of
persons accused of violent crimes,
but the Senate has not yet ratified

Calendar

Oct. 8-10 Seminar for Bankruptcy
Judges

Oct. 8-10 Workshop for New Training
Coordinators

Oct. 14-16 First Circuit Judicial
Conference

Oct. 22-24 Eastern Regional Seminar
for Federal Public and Commu-
nity Defenders

Oct. 27-29 Workshop for Judges of the
Eleventh Circuit

Oct. 29-Nov. 1 Seminar for Federal De-
fender Investigators

Oct. 30-31 Workshop for Appellate
Judges

the treaty. [On July 17, 1986, the
Senate ratified the treaty.] What is
your view on this issue?

In my view, we need to retain
within our law on extradition some
flexibility for judges to review the
merits of the individual case. For
this reason I have had sincere reser-
vations about this treaty. We have
held extensive exploratory hearings
before my Subcommittee on the
Constitution in which we looked at
the potential constitutional and legal
issues involved in ratifying a treaty
of this character. Furthermore, 1 am
concerned about the Diplock Courts
and a variety of other matters that
seem to be part of the problem with
regard to this treaty. So I am not a
rubber stamp for the support of this
treaty, although I really do feel we
have to do everything we can to
fight against terrorism in our society
today.

As a high-ranking member of the
judiciary committee, is there any
one issue related to the federal
courts that you would place on your
high priority list to change?

Well, 1 think there is a whole raft
of areas where we have a particular
interest. For instance, I think some-
thing has to be done with regard to
section 1983 cases and the whole
area of state and municipal liabihty.
We are finding now that municipali-
ties across this country cannot get
insurance to protect the public ser-
vants who serve them. Moreover,
even judges have been subject to
these suits recently. My bill to
strengthen this aspect of judicial im-
munity was recently approved by
my subcommittee, five to zero. And
1 think we've got to solve that prob-
lem within the near future. [See re-
lated story, p. 3.]

We also need to solve the prob-
lems of malpractice, legal, medical,
and otherwise— the whole area of
product liability and tort reform as
well. If we don't look into all of
these areas and resolve them, we're
going to find it very difficult for our
society to bear the burden of mount-
ing litigiousness.

1 also think in the area of civil
rights we have got to resolve the
question whether or not we have to
use an intent test or an effects or re-
sults test to identify discrimination.
If we just use a disparate impact test
or a statistical analysis test, then it
seems to me that we will be un-
locking a Pandora's box of litigation
in this country like never before,
and, 1 think, to the detriment of al-
most everybody in the country, in-
cluding minorities. I do beheve that
the intent test allows circumstantial
evidence. It allows all kinds of direct
and indirect proof. That is not all
that difficult to prove in true cases of
discrimination, but there are those
who want to be able to make a case
of discrimination merely on the basis
of statistics when in fact no actual
discrimination existed. The whole
area of civil rights is very important
to me, because I am a great believer
in it, but I think we have got to re-
solve the conflict between those two
standards of proof. And I can accept
either resolution, but it is no secret
that I would prefer to have an intent
test in the law in order to say, "this
is a person who discriminates." ■

Positions Available

Staff Counsel, Legal Office,
U.S. Supreme Court. Legal work
for the justices. Salary from
$37,599. Must be attorney with
minimum of three years' practice,
preferably including federal and
constitutional law and appellate
experience. Send Form 171, refer-
ences, and a brief writing sample
by Oct. 24 to Elizabeth Saxon, Per-
sonnel Officer, Supreme Court of
the U.S., Room 3, Washington,
DC 20543 (202/479-3404).

Clerk, U.S. Bankruptcy Court,
D. Utah. Salary from $44,430 to
$57,759. To apply, send resume by
Oct. 20 to Chief Judge Glen E.
Clark, U.S. Bankruptcy Court, 350
S. Main, Room 361, Salt Lake City,
UT 84101.
EQUAL OPPORTUNITY EMPLOYERS

LEGISLATION, from page 1

termed a "misreading" of the Su-
preme Court's opinion in United
States V. Will, 449 U.S. 200 (1980), in
which the Court, on constitutional
grounds, awarded judges two out of
our contested salary adjustments.

Judge Frank M. Coffin (1st Cir.),
IS chairman of the Judicial Confer-
■nce's Committee on the Judicial
Iranch, last year sent a letter, to-
;ether with new evidence of legisla-
ive intent, requesting another ruling
rom the comptroller general con-
erning the permanency of section
40. In response, in February 1986,
le comptroller general ruled for the
)urth time that section 140 is per-
lanent law. Judge Coffin stated that
e was "disappointed in the comp-
oller general's ruling, particularly
I light of the new material sub-
itted, but I am pleased with the
gislation introduced by Senator
itchell as well as the interest being
ken by other senators to remove
is inequity." Although the comp-
:)ller general ruled that section 140
permanent, he simultaneously
ged its repeal, stating that it is
lubtful Congress intended the ef-
:t achieved. Senator Mitchell's bill
based on the repealing language
commended by the comptroller
neral.

• The Senate Judiciary Commit-
e's Subcommittee on Security and
?rrorism held a hearing Aug. 13 on
gislation sponsored by the Justice
epartment concerning the U.S.
arshals Service (S. 2044, H.R.
i70, H.R. 4001). S. 2044 would es-
blish the Marshals Service as a bu-
au within the Department of Jus-
e. Stanley Morris, director of the
arshals Service, testified in sup-
»rt of S. 2044.

Judges William S. Sessions (W.D.
X.), chairman of the Subcommittee

Judicial Improvements of the Ju-
cial Conference's Committee on
>urt Administration, Sam C.
inter, Jr. (N.D. Ala.), and Dudley
Bowen, Jr. (S.D. Ga.) also
stified at the hearing. Judge Ses-
'ns told the Senate subcommittee

that many judges find S. 2044's
modifications of the authority that is
currently contained in 28 U.S.C.
§ 569 "unsettling." Judge Sessions
provided the Senate subcommittee
with a proposed amendment to
S. 2044, recommended by the Judi-
cial Conference's Court Administra-
tion Committee, which will preserve
individual judges' authority to com-
pel the presence of deputy U.S. mar-
shals during district court proceed-
ings. Mr. Morris stated that he
agreed with the Court Administra-
tion Committee's proposed version
of language to replace the exisHng
section 569. Copies of prepared
statements presented by Judges Ses-
sions and Bowen and by Mr. Morris
are available from the Legislative Af-
fairs Office of the AO.

• The House Judiciary Commit-
tee's Subcommittee on Criminal Jus-
tice will hold hearings on proposed
amendments to the Criminal Fine
Enforcement Act of 1984 (H.R.
3682). The bill would provide for the
collection of magistrate-imposed
fines by clerks of court, a proposal
opposed by the Judicial Conference.
Judge Gerald B. Tjoflat (11th Cir.)
will present the views of the Judicial
Conference before the House sub-
committee. It is the Conference's
policy that it is inappropriate for the
judiciary to collect criminal fines, ex-
cept in limited circumstances when
it is in the public interest for the
courts to perform this executive
branch function.

• The House Judiciary Commit-
tee's Subcommittee on Criminal Jus-
tice has concluded hearings on sev-
eral bills related to the Racketeer
Influenced and Corrupt Organiza-
tions Act (RICO) (H.R. 2517, H R
5290, H.R. 2943, H.R. 3985, and
H.R. 4892). The subcommittee
adopted a "clean bill," subsequently
introduced as H.R. 5445, which
would retain a private civil damage
remedy for actual damages plus
costs, including reasonable attorney
fees. The treble-damage award pro-
vided by the existing act would be
retained in suits brought by the at-

BULLETINOFTHE /KfjK
FEDERAL COURTS ^±i^

torney general or by state attorneys
general. H.R. 5445 fixes a two-year
statute of limitations; establishes de-
rivative liability of parent organiza-
tions for illicit activity of their em-
ployees and agents, if the parent
organization knew of and derived
benefit from the illicit activity; and
requires the plaintiff to establish
fraud by clear and convincing evi-
dence. H.R. 5445 would also change
the statute's name to the Pattern of
Illicit Activity Act.

• Representative Carlos J.
Moorhead (R-Cal.) introduced a bill
to establish a Federal Courts Study
Commission (H.R. 5467). The bill is
identical to one previously intro-
duced in the Senate by Senators
Strom Thurmond (R-S.C.) and How-
ell Heflin (D-Ala.). ■

TheSource

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. Recjuests should be in writing,
accompanied by a self-addressed mailing label, pref-
erably franked (but do not send an envelope), and
addressed to Federal Judicial Center, Information
Services, 1520 H Street, N.W., Washington DC
20005.

Administrative Office of the U.S.
Courts, 1986 Annual Report of the Director.
t^ Brennan, William J., Jr. "The Four-
teenth Amendment." Address to Section
on Individual Rights and Responsibilities
of the ABA, Aug. 8, 1986.

Burger, Warren E. "The High Cost of
Prison Tuition." 40 University of Miami L.
Rev. 903 (1986).

*^ Burger, Warren E. Remarks to the
ABA, Aug. 11, 1986.

Hug, Procter, Jr., National Judicial
College Jackson Lecture, Aug. 8, 1986.

Kaufman, Irving R. "Focusing Legisla-
tive Attention on the Administrative
Needs of the Courts." Institute of Judi-
cial Administration, Aug. 9, 1986.
1^ Powell, Lewis F., Jr. Remarks to
American Bar Association Litigation Sec-
tion meeting, Aug. 12, 1986.

Stevens, John Paul. "The Supreme
Court of the United States: Reflections
After a Summer Recess." 27 South Texas
L. Rev. 447 (1986).

THElHiroBRANCH

CIRCUITS, from page 3
partments of Commerce, State,
Justice, and the Judiciary) discussed
the fiscal implications for the judici-
ary of Gramm-Rudman-Hollings,
and Chief Judge James R. Browning
gave the state of the circuit address.
A panel considered "The Judiciary
and Society: Responsibility On and
Off the Bench"; another group dis-
cussed "The High Profile Cases as
Seen by the Judge, the Lawyer, and
the Media," giving their views about
whether it is possible to protect all
constitutional rights and maintain
judicial and journalistic independ-
ence. Members of the conference
from each of the districts held sepa-
rate meetings to discuss the state of
the administration of justice in their
district.

• Speakers at the Tenth Circuit
conference in Denver were Justice
Byron R. White, circuit justice for
that circuit. Chief Judge Ruggero J.
Aldisert (3rd Cir.), A. Leo Levin, di-
rector of the FJC, and L. Ralph
Mecham, director of the AO. The
program included talks and panel
discussions on topics such as moral
vision and the reconciliation of pro-
fessionaUsm, special admission to

practice in the federal courts, and
the First Amendment.

• The list of speakers at the Eighth
Circuit conference in Minneapolis
was led by Justice Harry A.
Blackmun, circuit justice for that cir-
cuit. Chief Judge Donald P. Lay re-
ported on the work of the U.S. Judi-
cial Conference, and FBI Director
William H. Webster (a former judge
on the Eighth Circuit) spoke on na-
tional security concerns in relation to
the First Amendment. Judge William
W. Wilkins, Jr. (4th Cir.), chairman
of the U.S. Sentencing Commission,
reported on progress made in
drafting sentencing guidelines and
answered questions. Law professors
Daniel J. Meador of the University of
Virginia and John E. Sexton of New
York University debated the ques-
tion whether an intercircuit panel
should be established. ■

ABA, from page 2

versal of the conviction on appeal.
H.R. 5367 would provide for dis-
missal of an indictment under such
circumstances.

• The ABA endorsed a proposed
change in the time period between
when an offer of judgment under

Fed. R. Civ. P. 68 is made and when
it must be accepted or rejected. Pres-
ently the rule states that an offer
may be made "[a]t any time more
than 10 days before the trial begins."
The ABA proposal would change
the language concerning the timing
of the offer so that the offer could be
made "at any time more than 60
days after service of the summons
and complaints ... but not less than
60 days before trial." Now, both
plaintiffs and defendants allegedly
have difficulty concluding settle-
ment negotiations between the time
of the offer of judgment and the
scheduled trial date (especially
where insurance is involved). Sanc-
tions under the rule would also be
increased. The "trigger criterion" for
imposition of sanctions would re-
main the same (automatic if the
offeree obtains at trial a resuh less
favorable than the rejected settle-
ment offer), but the court would not
impose sanctions on its own motion,
only upon the offeror's.

For further information on these
matters contact Alice O'Donnell,
1520 H. St., N.W., Washington, DC
20005, or FTS 633-6359. ■

BULLETIN OF TOE FEDERAL COURTS

THElHiroBRANCH

First
Class
Mail

Vol. 18 No. 10 October 1986

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

Official Business

Postage and

fees paid

United States

Courts

U.S. GOVERNMENT PRINTING OFFICE 198^^91-221-40006

BULLETIN OF THE FEDERAL COURTS

Ja(0/3y

:t7:

rHETHDRDBEANCH

VOLUME 18
NUMBER 11
NOVEMBER 1986

ustices Discuss Constitution, Affirmative Action, Death Penalty
Jicentennial Celebration Plans at Circuit Judicial Conferences

Justices of the Supreme Court
3ve spoken at circuit judicial con-
rences held in recent months. Re-
rinted below are excerpts from the
■marks of several of the justices
ade at recent circuit conferences
r which texts were available.
Justice Byron R. White at the
inth Circuit Judicial Conference,
ug. 22, 1986, Sun Valley, Idaho
The Constitution doesn't require a
ipreme Court justice to be a law-
r. All of them have been — of one
id or another. Nor does it require
at a jushce have any prior judicial
perience. And I hope that presi-
nts will not abandon the notion

that from time to time a lawyer
should be appointed from the bar
who has no judicial experience.
Such lawyers are closer to the pub-
lic, they are closer to reality, and
they bring a very different point of
view and attitude to the Court than
a circuit court judge does. I don't
mean to insult circuit or district
court judges, but they are just differ-
ent. Judges tend, when they have
been on the bench for a while, to be-
come set in their ways; they may
think they are more flexible than
they used to be, but I doubt it. That
goes for me, too. It was a wonderful
thing to put Lewis Powell on the

Court, and I hope that presidents
don't forget to appoint some justices
straight from the practice. It will
make the Court more responsive, for
the Court must remember that its
decisions aren't going to last if they

won't stand the test of time

See JUSTICES, page 2

rthur Miller Describes Federal Rules Revision
rocess. Changes in Law School J^ronment

Arthur R. Miller is a professor of law
Harvard Law School, where he gradu-
d magna cum laude. He received his ,^
4. from the University of Rochester '"
i, following law school, practiced in
w York, then taught at the universi-
5 of Minnesota and Michigan before
ring the faculty at Harvard. Professor
Her is the coauthor with Charles Alan
ight of Federal Practice and Proce-
re and the author of numerous other
'-related books and articles. He was
reporter to the Advisory Committee
Civil Rules of the Judicial Conference
he United States and a member of a
:ial advisory group to the Chief Jus-
on federal civil litigation. He is the
t of a syndicated television show
ed "Miller's Court," a legal expert
"Good Morning, A.merica," and has
ured at FJC seminars for newly ap-
ited district judges.

('ou have been a lecturer at the
Iter for many years now, speak-
on such matters as federal rules,
is actions, and jury trials. Based
this and your involvement in the
linars for newly appointed dis-
t judges, what are your reactions

Professor Arthur R. Miller

to the federal judiciary today?

It is always a special treat to be
part of the faculty at the seminars
for newly appointed judges. They
seem to me to be eager and arduous
to develop their judging tools to the
finest. I have especially been im-
pressed in the recent sessions with
the intensity of their involvement
and the tremendous range of experi-
See MILLER, page 8

Judicial Conference
Requests Judgeships,
Approves '88 Budget

The Judicial Conference of the
United States asked the Congress to
authorize 56 additional district court
judgeships and 13 additional judge-
ships on the courts of appeals.

The Conference also resolved at
its semiannual meeting in Septem-
ber that Congress should ensure that
funds are always available to fulfill
the constitutionally created right to a
jury trial. (Civil jury trials were
temporarily suspended for five
weeks last July due to a threatened
exhaustion of juror funds.) In other
actions, the Conference:

• Approved a fiscal year 1988
budget of $1.3 billion, an increase of
14 percent above the amount re-
cently approved by the Senate's
Committee on Appropriations for
fiscal year 1987. The Conference also
agreed to certain cost reduction
measures in response to the
Gramm-Rudman-HoHings Act, in-
cluding staffing limitations and re-
strictions upon expenditures for
travel by judges and judicial branch
employees.

• Approved a resolution recording
their "esteem, respect, and affection
for the Honorable Warren E. Burger
and their appreciation of his contri-
bution to the administration of Jus-
tice and to the Nation."

See CONFERENCE, page 12

m m.

'■yy.>'''.''y> >

theTHIRDbeanch

JUSTICES, from page 1

The Framers of the Constitution
opted for a limited government.
That is, they thought there ought to
be some ground rules for those who
want to govern, rules that would be
enforceable. . . . The Framers opted
for dividing up political power. They
kept the states as independent enti-
ties. They divided the federal gov-
ernment into distinct parts. And

sion. But we, the judges in our
country, must make a great deal of
law in deciding cases. Congress
can't write laws that are perfectly
clear, and many times Congress
can't arrive at precise decisions and
must go up one level of generality,
creating an ambiguity that ends up
on the judge's desk. Or Congress
deliberately uses general language
and leaves it to the courts or the

"You can't find out what the Sherman Act means by reading it. Nor
can you know what an unfair labor practice is by perusing the statute.

Similarly, most of the constitutional law is not to be found by
reading the Constitution, which is a very short document."

—Justice Byron R. White

then they imposed very important
ground rules. The courts, they antic-
ipated, would enforce these rules, as
well as this division of powers. This
gave the judiciary an authority that
was new to the world at that time,
an authority that gives the judiciary
a role in how the government is to
be run. One of the problems with
this is that some of the provisions of
the Constitution are obviously
minority-oriented and to enforce
them you must disagree with the
majority. . . .

If this decision is to have a Consti-
tution and ground rules that limit
the majority, it is inherent in that
system that judges must decide
high-profile cases that stir up terrific
storms. But that has been our
choice. Judges would have plenty to
do if they did nothing but find the
historical facts and had a perfectly
plain rule of law to guide their deci-

theTHIRDbkanch

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.

Co-editors

Alice L. O'Donnell, Director, Division of
Inter-Judicial Affairs and Information Serv-
ices, Federal Judicial Center. Peter C.
McCabe, Assistant Director, Program Man-
agement, Administrative Office of the U.S.
Courts.

administrative agencies to provide
the specifics. Most of the antitrust
law, for example, you find in the
case books. You can't find out what
the Sherman Act means by reading
it. Nor can you find out what an un-
fair labor practice is by perusing the
statute. You must go to the deci-
sions of the administrative agency
and the courts. Similarly, most of
the constitutional law is not to be
found by reading the Constitution,
which is a very short document. To
find the constitutional law you must

tion against Negroes and other mi-
nority groups in American society.
This conclusion has been expanded
into the proposition that courts and
parties entering into consent decrees
are limited to remedies which pro-
vide relief to identified individual
victims of discrimination. But the
second conclusion which may be
drawn from our common preference
for a colorblind society is that the
vesttges of racial bias in America are
so pernicious, and so difficult to re
move, that we must take advantage
of all the remedial measures at oui
disposal.

The difference between these
views may be accounted for, in part,
by a difference of opinion as to how
close we presently are to the "color-
blind" society to which we aspire. 1
believe that, given the position from
which America began, we still have
a very long way to go. . . .

Obviously, I too believe in the
colorbHnd society, but it has beer
and remains an aspiration. It is <
goal toward which our society ha;
progressed uncertainly. . . . The ar
gument against affirmative action is
an argument in favor of leaving tha
cost to lie where it falls. Our funda

"I ... believe in the colorblind society, hut it has been and remains an
aspiration. It is a goal toward which our society has progressed

uncertainly."

—Justice Thurgood Marshall

read the cases. This is judge-made
law, a function that judges are per-
forming every single day, and una-
voidably so.

Justice Thurgood Marshall at the
Second Circuit Judicial Conference,
Sept. 5, 1986, Bolton Landing, New
York

I believe all of the participants in
the current debate about affirmattve
acHon agree that the ultimate goal is
the creation of a "colorblind" soci-
ety. From this common premise,
however, two very different conclu-
sions have apparently been drawn:
the first is that "race-conscious"
remedies may not be used to elimi-
nate the effects of such discrimina-

mental sense of fairness, particularl;
as it is embodied in the guarantee c
equal protection of the law, require
us to make an effort to see that thos
costs are shared equitably while w
continue to work for the eradicatia
of the consequences of discrimine
tion. . . .

The problem of discriminaHon an
prejudice in America is too deef
rooted and too widespread to b
solved only in the courts, or onl
through the intervention of federi
authority to convince the recalcitrar
that justice cannot be indefinite!
delayed.

See JUSTICES, page

Advisory Committee of Judges Completes Report Appraising
Performance, Structure of Administrative Office of U.S. Courts

BULLETIN OF THE /KtA
FEDERAL COURTS ^1*^

The Ad Hoc Advisory Committee
)n the Administrative Office of the
J.S. Courts has submitted its final
eport. The committee was ap-
(ointed by Chief Justice Burger in
)ecember 1985 to advise AO Direc-
or L. Ralph Mecham in his exami-
ation of the AO's effectiveness in
erving the needs of the federal judi-
iary and court personnel. Members
f the committee were Judge
dward J. Devitt (chairman) and
hief Judges James Lawrence King,
obert J. McNichols, and Jack B.
^einstein.

The committee first sought the
ews of the judges by mail and re-
ived responses from 185 Article III
dges. Bankruptcy judges, magis-
ites, district and circuit executives,
?rks of court, public defenders,
d probation officers also re-
onded, and 18 members of senior
iff at the AO were interviewed,
rhe most frequent criticism was
? perception by some judges and
lers of the absence of a coopera-
e attitude and helpful disposition

some AO employees in re-
ading to requests for assistance.
e committee noted, however, that

Director Mecham and his associates
are taking steps to make the AO
more responsive to the needs of the
courts and judges, with special em-
phasis being placed upon employee
attitudes. Director Mecham has in-
formed the committee that he has
advised his staff to adopt a rebutta-
ble presumption that whatever is
asked for should be given, and to
stress his "five P's": be Prompt, Po-
lite, Professional, Positive, and
Proud of your work.

The report notes that some criti-
cism of the AO may arise from the
differing expectations that individual
judges, the Judicial Conference,
Congress, and other agencies have
for the AO. In implementing policies
determined by the Judicial Confer-
ence and by Congress, "the AO, at
times, finds itself caught in the
middle— between the Conference
and the Congress on the one hand,
and the judges and others in the Ju-
dicial Branch who may fail to appre-
ciate those requirements, on the
other," the report noted.

Among the areas dealt with in the
report are the increase in size of the
AO and its relations with other

ominations Being Accepted for Devitt
istinguished Service to Justice Award

'Jominations for the fifth annual
ward J. Devitt Award for Distin-
shed Service to Justice are open
il Dec. 31, 1986. The members of
s year's selection committee are
tice William J. Brennan, Jr., Chief
ge Charles Clark (5th Cir.), and
ge Devitt (chairman). The award
;iven to an Article III federal
ge each year by West Publishing
npany to recognize accomplish-
nts and professional activities
: have contributed to the cause of
tice. It is named for Edward J.
itt, senior judge of the U.S. Dis-
t Court for the District of
mesota, who served as chief

judge of that court for more than 20
years. Past recipients of the award
include Judge Albert B. Maris (3rd
Cir.), Judge Walter E. Hoffman
(E.D. Va.), Judge Frank M. Johnson,
Jr. (11th Cir.), and Judge WiUiam J.
Campbell (N.D. 111.). Chief Justice
Warren E. Burger was honored by a
special award in 1983, and a special
posthumous award was made in
1985 in memory of Judge Edward A.
Tamm (D.C. Cir.).

Nominations for the 1986 award
should be submitted to Devitt Dis-
tinguished Service to Justice Award,
P.O. Box 43810, St. Paul, MN
55164-0526. ■

agencies. The committee noted that
the AO is operating with only 538 of
its 583 authorized positions, making
its size less than the 94 percent of
authorized staffing level applied to
the courts by a policy of the Judicial
Conference. Moreover, the AO's
growth has been less than that of
the judiciary in general, and its
See AO, page 12

1987-88 Judicial Fellows
Program Announced

Young professionals interested
in judicial administration are in-
vited to apply for the 1987-88 Judi-
cial Fellows Program.

Now entering its fourteenth
year, and patterned after the
White House and Congressional
Fellowships, the Judicial Fellows
Program offers unique opportuni-
ties for highly talented profession-
als with multidisciplinary back-
grounds to work in the federal
system.

Fellows will be chosen by a na-
tional commission to work at the
Supreme Court in the office of the
Administrative Assistant to the
Chief Justice, the Federal Judicial
Center, or the Administrative Of-
fice of the U.S. Courts.

Candidates should have at least
one postgraduate degree, at least
two years' professional experience,
and preferably some familiarity
with the federal judicial system.
Stipends for the fellowship are
based on salary history and com-
parable government salaries. The
1987-88 fellowships will begin in
September 1987 and last one year.
To ensure consideration, applica-
tions should be received by Dec.
12, 1986; selections will be made in
January 1987.

An application form, informa-
tion, and literature on the program
are available on request from
Charles W. Nihan, Executive Di-
rector of the Judicial Fellows Com-
mission, Federal Judicial Center,
1520 H Street, N.W., Washington,
DC 20005.

4 ^ '

THEIMRD BRANCH

Bicentennial Roundup: Speakers, Law School Essay Contest Planned

The following items of interest
have been announced by the Com-
mission on the Bicentennial of the
U.S. Constitution and other parties
planning for the observance of the
bicentennial.

• Chief Justice Warren E. Burger,
chairman of the Commission on the
Bicentennial of the Constitution, has
submitted the commission's first full
year's report, entitled Preparation for
a Commemoration. The report dis-
cusses programs and projects ini-
tiated during the comnnission's first
full year as well as its future plans.

• Judge Arlin M. Adams (3rd
Cir.), as chairman of the Bicenten-
nial Judicial Speakers Committee,
has corresponded with all federal
judges and full-time federal magis-
trates concerrung their possible par-
ticipation as speakers at events con-
nected with the observance of the
bicentennial. The judges and magis-
trates are being asked to indicate

whether they would be willing to
participate in the speakers program,
and to indicate the kinds of bicen-
tennial themes in which they are in-
terested. The Bicentennial Commis-
sion and the FJC will be able to
assist participahng judges by provid-
ing resource material. (Two
bibliographies on the Constitution's
writing and ratification have already
been prepared by and are available
from the FJC). Judges wishing to
participate or comment on the
speakers program should write to
Judge Arlin M. Adams, Federal Judi-
cial Center, Attention: Office of the

Senate Removes Judge
Claiborne from Office

Chief Judge Harry E. Claiborne
(D. Nev.) was convicted by the Sen-
ate on Oct. 9 on three of the four ar-
ticles of impeachment voted by the
House and ordered removed from
office. The Senate did not vote to
convict on the article that said the
judge's felony conviction on tax-
evasion charges was, in and of itself,
sufficient basis to impeach him.

On June 18, 1986, the Ninth Cir-
cuit Judicial Council certified to the
Judicial Conference of the United
States that Judge Claiborne had "en-
gaged in conduct which might con-
stitute grounds for impeachment,"
and the Judicial Conference on June
30 certified to the Speaker of the
House of Representatives that con-
sideration of the judge's impeach-
ment "may be warranted." The
House of Representatives agreed to
the four articles of impeachment on
July 22. ■

Director, 1520 H St., N.W., Wash-
ington, DC 20005.

• West Publishing Company, in
cooperation with the commission,
has announced its sponsorship of an
essay competition for law school stu-
dents. The first prize will be $10,000,
second prize $2,500, and third prize
$1,000. The competition is open to
all students enrolled in a J.D. or
LL.B. degree program in an ABA- or
state-approved law school. The sub-
ject for the essay is, "Does the allo-
cation of power between the federal
and state governments and among
See BICENTENNIAL, page 12

State Justice Institute Holds First Board Meeting

Nine of the eleven members of the
State Justice Institute board took their
oaths of office at the U.S. Supreme
Court Sept. 29. Chief Justice Warren

E. Burger, who did much to promote
the establishment of this organization
through public addresses and en-
dorsements sent to Congress, admin-
istered the oaths. Pictured above with
Chief Justice Burger are the board
members (1. to r.): Chief Judge John

F. Daffron, Jr. (12th Judicial Circuit,
Chesterfield County, Va.), Lawrence
H. Cooke (former chief judge of the
New York Court of Appeals), Chief
Justice Warren E. Burger, Larry P.
Polansky (Executive Officer, District
of Columbia Courts), Sandra Ann
O'Connor (state's attorney for
Baltimore County, Md.), Justice

James Duke Cameron (Supreme
Court of Ariz.), Presiding Judge
Janice L. Gradwohl (County Court,
Third Judicial District, Lincoln, Neb.),
Resident Judge Rodney A. Peeples
(Second Judicial Circuit, Barnwell,
S.C), Chief Justice Clement C.
Torbert, Jr. (Supreme Court of Ala.),
Prof. Daniel J. Meador (University of
Virginia Law School).

Organizahonal plans were made at
a board meeting following the Sept.
29 ceremonies. Chief Justice Torbert
was elected chairman of the board
and Judge Peeples vice-chairman.
With an initial budget of $7.2 million
for fiscal year 1987, the Institute is
now operational. Two more board
nominations are to be made by Presi-
dent Reagan.

iheTHIRDbranch

FILLER, from page 1

nces they bring to the federal

ench.

What were your contributions to
etting out the Manual on Multidis-
rict Litigation? Did you enjoy that
^ork?

I think working on the manual
ras not only one of the most enjoy-
ble jobs but actually transformed
\y life. I go way back to before
lere was a manual, when a group
f judges put together a draft. It was
fter the Electrical Supply Cases and
hen Judge Alfred Murrah was di-
!Ctor of the Federal Judicial Center.
e sent around a draft with a letter
t a group of academics, and I was
len teaching at the University of
[innesota. It must go back over 20
?ars. I started reading this draft
id I got so intrigued by it that I

tion. I think Judge Pointer is one of
the paragons of the federal judiciary.
You have been a reporter for the
Judicial Conference Advisory Com-
mittee on Federal Rules of Civil
Procedure for several years. Would
you comment on your input to the
work of this committee? Do you re-
ally feel the public hearings are
helpful? Do members of the Advi-
sory Committee, the Supreme
Court, and finally the Congress pay
that much heed to comment re-
ceived at the public hearings?

Being the reporter means that, in
a sense, I am the "worker bee" of
the group. It is my job to execute the
wishes of the committee and to do
the drafting both of the rules and
the notes and the background mem-
oranda. The reporter also affects the
agenda of the committee. I had the

"I think in some limited contexts some of the local rules
areabit pushy; they butt up against the national rules."

ote Judge Murrah. And he must
ve been intrigued by my answer,
cause he then appointed me to a
mmittee that worked almost as a
ison between the American Bar
sociation and the federal judges. I
?d to shuttle between the lawyer
)up, who were very apprehensive
out the manual, and the judge
Dup, particularly Judge William
:ker (W.D. Mo.). I would shuttle
:k and forth and try to negotiate
• lawyers' views and the judges'
ws. That ultimately produced the
;t manual; then 1 just sort of hung
•und over the years to help in the
isions.
udge Becker is a wonderful man.

taught me more about what fed-
I judges really do with their cases
n almost anyone I know.
low many revisions were there?

think we went through four or
>sibly five revisions of the first
tion. And now Judge Pointer of
ibama has led the team to pro-
:e the second edition, which I
st confess I have not been as ac-
■ on as 1 was with the first edi-

wonderful experience of working
with Judge Walter Mansfield of the
Second Circuit, who is a terrific
chairman and who has the respect of
the entire Advisory Committee.

The public hearings are really a
mixed bag. Sometimes they provide
very valuable insights, insights as to
whether a given rule is effectively
drafted, or has caused confusion, or
needs some brushing up. The hear-
ings also give insight into what the
bar thinks about the work product.
On the other hand, a lot of what
goes on before the committee in
those public hearings could just as
well be done on paper without the
need for the hearings. A lot of it is
posturing by representatives of in-
terested groups, but I think on bal-
ance you need the public hearings.
They give a sense of life and reality
to the process.

Does a lawyer sometimes appear
who just wants to make a point for
personal reasons?

Yes, like any public hearing you
get a tremendous variety of people.
So people are sometimes there for a

client, or to push a pet project. Still
there is enough wheat in the chaff to
justify it. Psychologically it is very
important to have the process open,
and 1 think one of the reasons that
the Congress is very much involved
in thinking about federal rule mak-
ing these days is that there have
been accusations that it is a closed
process. So I think psychologically
and for the good of the profession
that opening up the process through
public hearings is a good thing.

See MILLER, page 9

Illustrative Rules

Governing

Judicial Misconduct

Published by FJC

The Center recently published Il-
lustrative Rules Governing Com-
plaints of Judicial Misconduct and
Disability, a report issued by a spe-
cial committee of the Conference
of Chief Judges of the U.S. Courts
of Appeals, chaired by Chief Judge
James R. Browning and including
Judge Collins J. Seitz and Chief
Judge Charles Clark. Anthony Par-
tridge of the Center's Research Di-
vision served as reporter.

The illustrative rules, and ac-
companying commentary, reflect
experience with the complaint pro-
cedure mandated by the Judicial
Councils Reform and Judicial Con-
duct and Disability Act of 1980 and
serve as a means of sharing both
information and ideas. The special
committee expressed the view that
experimentation with various ap-
proaches under the statute is desir-
able and in conformity with con-
gressional intent. Accordingly, the
committee did not urge that the il-
lustrative rules be adopted on a
uniform basis, but rather ex-
pressed the hope that they might
prove a useful reference for those
working on revisions of local rules.
Copies of the illustrative rules
can be obtained by writing to In-
formation Services, 1520 H St.,
N.W., Washington, DC 20005. En-
close a self-addressed mailing la-
bel, preferably franked (13 oz).
Please do not send an envelope.

BULLETIN OF THE /I?
FEDERAL COURTS 'rlr

JUSTICES, from page 6

of judges over time. I believe that
problems are susceptible to rational
solution if we work hard at making
and understanding arguments that
are based on reason and experience.

And with respect to the death
penalty, I believe that a majority of
the Supreme Court will one day ac-
cept that when the state punishes
with death, it denies its humanity
and dignity of the victim and trans-
gresses the prohibition for that rea-
son against cruel and unusual pun-
ishment. For me, that day will be a
great day for the country and a great
day for our Constitution.

Chief Justice Warren E. Burger at
the Fourth Circuit Judicial Confer-
ence, June 27, 1986, White Sulphur
Springs, West Virginia

Today I want to talk about the Bi-
centennial programs and projects
that are either underway or
contemplated. * * *

It seemed to me, from the outset,
that we had to distinguish between
the kind of celebration we had in

1976, where fireworks and parades
were necessarily predominant, and
the kind of programs we want for
the Bicentennial of the Constitution.
There may be some fireworks and
there may be some parades, but the
important thing here is to give
ourselves— and I do not mean just
voters out there, I mean all of us — a
history and civics lesson about how
we got this Constitution and how
difficult it was to get it. * * *

the Exchange, the PTA, and the Girl
and Boy Scouts. * * *

I have met with some of the lead-
ing television and press people, and
I have told them, "Here's the story.
We know the story. You know how
to tell it. Will you please help?" * * *

Congress has given us $12 million,
in contrast to the more than $200
million available for the celebration
in 1976. Getting more millions in the
present fiscal climate is not going to

TheSource

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 mailing label,
preferably franked (but do not send an envelope),
and addressed to Federal judicial Center,
Information Services, 1520 H Street, N.W.,
Washington, DC 20005.

Brennan, William J, Jr. "The Constitu-
tion of the United States: Contemporary
Ratification." 27 South Texas L. Rev. 433
(1986).

Brennan, William J., Jr. "What's
Ahead for the New Lawyer?" 47 Univer-
sity of Pittshurf^h L. Rev. 705 (1986).

Cannon, Mark W., and David M.
O'Brien (eds.). Views from the Bench: The
judiciary and Constitutional Politics.
Chatham House Publishers, 1985.

Nafhanson, J. Edmond. "Congres-
sional Power to Contradict the Supreme
Court's Constitutional Decisions: Ac-
commodation of Rights in Conflict." 27

"It seemed to me . . . that we had to distinguish between the kind of
celebration we had in 1976 .. . and the kind of programs we want for
the Bicentennial of the Constitution. . . . [T]he important thing here is to
give ourselves . . . a history and civics lesson about how we got this

Constitution . . . ."

—Chief Justice Warren E. Burger

[W]e are trying to reach everyone,
from the kiddies in the grade
schools, the high schools, and up
through undergraduate colleges and
law schools. We will have a national
speakers bureau and every federal
judge and every state judge will be
invited to tell this story to the com-
munity luncheon clubs, the Rotary,

be easy; as you know, we recently
had problems securing money foi
jury fees. For that reason, we are go-
ing to have to call on every membei
of the legal profession of this coun
try to familiarize himself or hersell
with the details of some of these
great episodes and then see to it thai
this story is told. I

}Nilliam & Mary L. Rev. 331 (1986).

Oliphant, Robert E. "Rule 11 Sanctions
and Standards: Blunting the Judicial
Sword." 12 William Mitchell L. Rev. 731
(1986).

Sand, Leonard B., and Steven Alan
Reiss. "A Report on Seven Experiments
Conducted by District Court Judges in
the Second Circuit." 60 New York Univer-
sity L. Rev. 423 (1985).

Toran, Janice. "Settlement, Sanctions,
and Attorney Fees: Comparing English
Payment into Court and Proposed Rule
68." 35 American University L. Rev. 301
(1986).

Weinstein, Jack B. "From the Bench:
Warning — Alternative Dispute Resolu-
tion May Be Dangerous." 12 Litigation 5
(Spring 1986).

Weisberger, Joseph R. "The Twiligh
of Judicial Independence— PuZ/iflm v
Allen." 19 Suffolk University L. Rev. 53'
(1985).

Calendar

Health Plan Open Season

An open season to enroll in or
change health insurance plans will
take place from Nov. 10 to Dec. 5,
the AO has announced.

Nov.

Nov,
Nov
Nov
Nov.
Dec.
Dec.
Dec.
Dec

5-7 Workshop for Trainin
Coordinators of the Elevent
Circuit

10-14 Orientation Seminar fc
New Assistant Federal Defendei
12-14 Seminar for Bankruptc
Judges
17-19 Jury Management Wor

shop
19-21 Workshop for Judges of tl

Fifth Circuit

3 Judicial Conference Advisoi
Committee on Appellate Rules

3-5 Workshop for Judges of tl
Eighth and Tenth Circuits

4 Judicial Conference Committi
on the Judicial Branch

4-6 Workshop for Judges of tl
Sixth Circuit

THE THIRD BRANCH

JUSTICES, from page 2

Securing equality requires the at-
tention, the energy, and the sense of
justice possessed by all the well-
intentioned citizens of the society.
They need to be assured that the
government, the law, and the courts
stand behind their efforts to over-
come the harm bequeathed to them
by the past. They need to know that
encouragement and support, not
criticism and prohibition, are avail-
able from those who are sworn to
uphold the law. Courts must offer
guidance, to the best of our ability,
to the attempts by individuals and
institutions to rectify the injustices of
the past. We must labor to provide
examples of solutions that may
work, and approaches that may be
tried. If we fail, then we delay or
postpone altogether the era in
which, for the first time, we may say
with firm conviction that we have
built a society in keeping with our
fundamental belief that all people
ire created equal.

Justice Lewis F. Powell, Jr., at the
Eleventh Circuit Judicial Confer-
ence, May 12, 1986, Atlanta,
jeorgia

I now venture some observations
ibout capital cases in this circuit

Although the "delay problem" . . .
emains serious, constructive steps
lave been taken in the circuit to
meliorate it. Only recentiy, when 1
lentioned that 1 would be here to-
lay, the Chief Justice asked me to
ongratulate the circuit, and Chief
Jdge Godbold in particular, on the

may be that Alabama has done
likewise.

Perhaps the most critical need is
an organized program for the repre-
sentation by counsel of death row
prisoners. The Florida bar is to be
commended, and particularly Bill
Henry, its president in 1983-84, for
leadership in seeking solutions. My
understanding is that, because of the
inadequacy of using volunteer law-
yers, the Florida legislature— at the
request of the state supreme court
and the bar— has created an office of

Justice William J. Brennan, Jr., at
the Third Circuit Judicial Confer-
ence, Sept. 23, 1986, Princeton, New
Jersey

I have lived now for several years
with arguments supporting and
opposing the constitutionality of
capital punishment. They come in
increasing numbers these days, as
the population of death row in-
creases, and executions are now be-
ing carried out by the several
states. . . .

I have read countless briefs and

"/ am convinced that law can be a vital engine, not merely of change
but of civilizing change. " o j & >

—Justice William J. Brennan, Jr.

"capital collateral representation,"
with state funding. 1 believe that
Georgia and perhaps Alabama have
followed suit.

An important state development
was the amendment of Florida's
rules of criminal procedure to re-
quire that a prisoner seeking collat-
eral review must file his petition
within two years after his judgment
and sentence become final — with
limited exceptions.

Your circuit was the first to install
a computerized program for keeping
all federal judges advised of the sta-
tus of each case. I believe this is
called the Capital Case Status Re-
port. Also you have inaugurated the
prior assignment of district court
judges and court of appeals panels
to particular cases

"No higher duty exists in the judging process than to exercise
meticulous care when the sentence may be, or is, death."

—Justice Lewis F. Powell, Jr.

vay you are addressing the
>roblem.
1 mention only highlights of your
ction that seem to us in Washing-
on to be so important. Both Florida
nd Georgia have created state-
ederal judicial councils— informal li-
ison groups of state and federal
Jdge&— to oversee this problem. It

No higher duty exists in the
judging process than to exercise me-
ticulous care when the sentence may
be, or is, death. This can and should
be done, preserving fully all consti-
tutional rights, without permitting
the process of repetitive — and often
frivolous — review to drag on for
years.

listened to innumerable oral presen-
tations, and I have been persuaded
and remain persuaded that death is
unconstitutional. I reach that conclu-
sion based on arguments of lawyers
who I am convinced have made the
better, and I mean by that the better
reasoned, case. Now, this is not to
suggest, of course, that underneath
the robes I am not — we are all hu-
man beings with personal views and
moral sensibilities, yes, and religious
scruples — but it is to say that above
all, 1 am a sitting judge, required to
pass on that issue.

I am convinced that law can be a
vital engine, not merely of change,
but of civilizing change. That is be-
cause law, when it merits the syno-
nym justice, is based on reason and
insight. Decisional law evolves as lit-
igants and judges develop a better
understanding of the worid in which
we five. Sometimes, these insights
appear pedeshrian, such as when we
recognize, for example, as we have,
that a suitcase is to be treated more
like a home than it is like a car.

On occasions those insights form
a mens rea, such as when we finally
understand that separate can never
be equal. 1 believe that these steps
which are the building blocks of
progress are fashioned from a great
deal more than the changing views

See JUSTICES, page 7

BULLETIN OF THE AI?
FEDERAL COURTS '•X*'

Draft Guidelines Published, Plea Hearing Held

The Sentencing Comnussion pub-
lished a preliminary draft of sentenc-
ing guidelines in the Federal Register
on Oct. 1, 1986. A copy of the draft
was also mailed to each member of
Congress, Article III judge, chief
U.S. probation officer, U.S. attorney,

Sentencing

NEWS

FROM

THE

Commission

and federal public defender, and to
hundreds of private defense attor-
neys, victims' advocates, criminal
justice specialists, private citizens,
law enforcement organizations, and
interested organizations such as the
NAACP and ACLU.

The commission voted to publish
a preliminary draft far in advance of
any legal requirement to do so in or-
der to allow for the widest possible
public comment and analysis on
possible formats, structures, and ap-
proaches in developing a guideline
system. The FJC committee on edu-
cation about the 1984 crime control
legislation wrote separately to all ju-

dicial branch recipients, summariz-
ing the draft's contents and urging
them to review it and provide the
commission whatever comments
they wished.

One of the most pressing policy
issues the commission must resolve
is the role of plea agreements in a
sentencing guideline system. Be-
cause it does not want plea agree-
ments to undermine sentencing
guidelines. Congress has directed
the commission to promulgate gen-
eral policy statements for considera-
tion by federal judges in deciding
whether to accept or reject plea
agreements, in order to promote re-
sponsible plea agreement practices
that do not perpetuate unwarranted
sentencing disparities. To that end,
the commission held its fifth public
hearing in Washington, D.C., on
Sept. 23, on the appropriate limits of
judicial scrutiny in plea agreements
and on related issues. Witnesses in-
cluded Justice Department officials
(including U.S. attorneys), repre-
sentatives of defender organizations,
private attorneys, and law
professors. H

Noteworthy

Attorney access to argument tapes. In

response to requests from members of
the bar, the Ninth Circuit has changed
its policy concerning cassette tapes of
oral argument. Attorneys will soon be
able to purchase copies of these tapes
from the clerk's office. The court's previ-
ous policy had been to allow attorneys
only to listen to the tapes and have them
transcribed. Such tapes are not an offi-
cial record of the court proceeding. (As
noted in Ninth Circuit News.)

State sentencing guidelines for
youths. A study financed by the Justice
Department's Office of Juvenile Justice
and Delinquency Prevention has recom-
mended that states adopt sentencing
guidelines for young offenders. The

study was overseen by Ralph A.
Rossum, a professor of government at
Claremont McKenna College in
Claremont, Cal. A 10-member panel of
scholars and lawyers drafted the
guidelines, which should be published
later this year. The Justice Department
has not yet formally endorsed the pan-
el's recommendations.

» » »

More lawyers. The American Bar
Foundation reports that the number of
lawyers in the U.S. increased from
542,205 in 1980 to 655,191 by the begin-
ning of 1985, an increase of 21 percent.
In 1985, 70 percent of lav^ers were in
private practice, and less than 4 percent
were employed by the judiciary. Nearly
10 percent of lawyers worked in private
industry; slightly more than 8 percent
worked in government; 3 percent
worked for legal aid organizations, pri-
vate associations, and special interest
groups; and 5.5 percent were retired or
inactive. H

Personnel

Nominations

Patrick J. Duggan, U.S. District Judge,

E.D. Mich., Sept. 11
Douglas H. Ginsburg, U.S. Circuit

Judge, D.C. Cir., Sept. 23
Alex T. Howard, Jr., U.S. District Judge,

S.D. Ala., Sept. 23
Bruce M. Selya, U.S. Circuit Judge, 1st

Cir., Sept. 26
Joseph F. Anderson, Jr., U.S. District

Judge, D.S.C, Sept. 26
William L. Dwyer, U.S. District Judge,

W.D. Wash., Sept. 26
Reena Raggi, U.S. District Judge,

E.D.N.Y., Oct. 3

Confirmations

Joel F. Dubina, U.S. District Judge, M.D.

Ala., Sept. 12
Alan C. Kay, U.S. District Judge, D.

Hawaii, Sept. 12
Richard B. McQuade, Jr., U.S. District

Judge, N.D. Ohio, Sept. 12
Diarmuid F. O'Scannlain, U.S. Circuit

Judge, 9th Cir., Sept. 25
James L. Graham, U.S. District Judge,

S.D. Ohio, Sept. 25
Frederic N. Smalkin, U.S. District Judge,

D. Md., Sept. 25
Douglas H. Ginsburg, U.S. Circuit

Judge, D.C. Cir., Oct. 8
Bruce M. Selya, U.S. Circuit Judge, 1st

Cir., Oct. 8
Joseph F. Anderson, Jr., U.S. District

Judge, D.S.C, Oct. 8
Patrick J. Duggan, U.S. District Judge,

E.D. Mich., Oct. 8
Alex T. Howard, Jr., U.S. District Judge,

S.D. Ala., Oct. 8
James R. Spencer, U.S. District Judge,

E.D. Va., Oct. 8

Appointment

Ronald R. Lagueux, U.S. District Judge,
D.R.I. , Sept. 5

Senior Status

James Hunter III, U.S. Circuit Judge, 3d

Cir., June 30
Otto R. SkopU, Jr., U.S. Circuit Judge,

9th Cir., June 30
Laughlin E. Waters, U.S. District Judge,

CD. Cal., July 6
Warren J. Ferguson, U.S. Circuit Judge,

9th Cir., July 31
Charles E. Simons, Jr., U.S. District

Judge, D.S.C, Aug. 17

MILLER, from page 8

Do you feel there is any justifica-
tion for criticism that some local
rules go beyond the national rules?

I think in some limited contexts
some of the local rules are a bit
pushy. They butt up against the na-
tional rules. I think the issue is dis-
torted; I think it is overstated. Some
of the rules, I would say, violate the
limitation on the local rule-making
power. But I don't think this is a ma-
jor problem. I don't think the incon-
sistency is as widespread as many
people think it is. We've had a tre-
mendous lack of judicial challenges
:o local rules. You know, we've had
•ules in most districts limiting the
lumber of interrogatories, which
nany people say is inconsistent with

Rules has been called the most vo-
cal proponent of stronger sanctions
under rule 68. Bills are pending in
both the Senate and the House to
amend the rule, the Supreme Court
has more than once upheld rule 68,
and now there are movements
among the bar membership to re-
write the rule. Are you of the belief
that rule 68 needs to be redrafted?
Rule 68 was the most controversial
subject during my tenure as re-
porter. In retrospect it seems to me
that we got the massive changes to
rules 11, 16, and 26 through in '83.
And then this firestorm developed
about rule 68. Our intent in the com-
mittee, and my intent as reporter,
was to try and develop rule 68 into a
provision that would force the liti-

"l will go the grave believing that what we tried to do in
rule 68 was right."

ederal rule 33, which contains no
imitation on the number of interrog-
itories. There seems to be a reluc-
ance to take the issue to the judici-
ry. If they challenge it, we might
;et some jurisprudence as to where
he line between the local and the
lahonal rules is, otherwise that line
! always going to be indistinct. No-
ody really knows where the line is.
think the new rule 83, which was
2cently amended, improves the
rocess of local rule making and
Kould quiet some of the criticism.

When you refer to challenges to
»e local rules, what do you have in
dnd?

You very often have someone
ho would like to see a conflict be-
veen the local rule and the national
lie because it serves his purpose.
hey take the position that the local
lie is invalid for a litigation posi-
on. But they never seem to chal-
nge it in court. I think I could
•unt on the fingers of one hand the
Jmber of cases in which a local rule
is been challenged as violative of
e national rules. There's a lot of
)ise but very littie action.
The Advisory Committee on Civil

gants to consider settlement very,
very seriously as early as possible in
the litigation. I wish I had a dollar
for every case that was settled on
the courthouse steps just before
trial. If it settles then, it could have
settied a year or two earlier. So rule
68 was designed to be a pushing
mechanism that says, "Look; think
about settlement." Everyone who
came in to testify about it saw phan-
toms. They all had horror stories. It
was like Chicken Littie saying "the
sky is faUing!" They were scared. I
have never seen such a chamber of
horribles paraded in my life.

This was at the public hearings?
Yes. I have in my office at least
three feet of paper attacking rule 68.
I will go to the grave believing
that what we tried to do in rule 68
was right; that the only way you are
going to get lawyers to evaluate
their cases seriously is if you put a
little bit of a gun to their head. And
that is what rule 68 was designed to
do.
Set a trial date?

Set a trial date; make an estimate
of your case and if you are really, re-
ally way off the track — if it looks as

■ 9

BULLETIN OF THE AITK
FEDERAL COURTS ^^

if you are playing dog in the man-
ger— then you should pay the ex-
penses of your opponent.

Do you believe the language of
rule 16(c)(7) is sufficient authority
for the institution by the district
court of an experimental court-
annexed arbitration program?

When we drafted rule 16(c)(7) in
the Advisory Committee, part of our
intention was to encourage what we
call interim, extra-judicial dispute
resolution techniques. We wanted to
give the courts authority to use this
almost smorgasbord of alternative
dispute resolution techniques that

have been developed in recent
years. So we thought that the rule
coupled with the inherent power of
the federal courts would be enough
to develop arbitration mechanisms.
That was our intention.

You have written extensively on
class actions and rule 23. There
were proposals to restate rule 23
eight years ago, but the committee
decided to wait because it appeared
that Congress might legislate in this
area. Does it now seem timely to re-
state rule 23? If it does, in what
way?

I think it is time to go back to rule
23. Rule 23 has been like a religious
war for many, many years. It is one
of those subjects in which you get
incredible cleavage and disagree-
See MILLER, page 10

theTHBRDbranch

MILLER, from page 9

ment between the plaintiff's bar and
the defense bar. And the rhetoric
and the emotion of the late '60s and
the early '70s always struck my
funny bone as being a religious war
between the plaintiff's bar and the
defense bar. I think a lot of the hys-
teria about the rule has quieted
down. And I think it is time to lift
the moratorium, and go back to rule
23 and take the more than 20 years'

on, there are things that I use the
problem method on. There are
things I will teach through "moot
courting" within the class. So every-
body should do his or her own
thing. What I do feel very strongly
about, however, is that the class-
room experience should be an in-
tense experience. Our job as law
teachers is to teach and develop pro-
fessionals. The life of the profes-
sional is one of intensity. It is one of

pressure and intensity, after the stu-
dent revolution became unaccep-
table, so you have to make a deci-
See MILLER, page 11

"Rule 23 has been like a religious war for many, many
years."

experience we have had under it
and see if we can't build a better
mousetrap. I think there are ways of
improving the rule in terms of the
notice requirement, in terms of
describing what are proper class ac-
tions, improving descriptions of sub-
classing and the judicial powers in
class actions. And I think that the
Supreme Court's decision a year ago
in Phillips Petroleum v. Shutts requires
some rethinking of what the rule
should say. (I must drop a footnote
here and say I am a little bit crazed
about this, since I argued the case.) I
think we have now hit the point
where we can make a reasonable
reevaluation of class actions.

Do you believe that the tradi-
tional teaching methods used by
most law professors and law
schools are still those best suited to
today's curriculum? Which teaching
methods work best?

I have always believed that there
is no one teaching method. The best
teacher is the teacher who teaches in
a style comfortable to himself or her-
self. There is no magic in the So-
cratic method or the problem
method or the lecture method. Dif-
ferent suits fit different people. I am
fairly clear that the days of the pure
Socratic method are over. That was
fine in a world in which everything
was common law and in which
everything was case law. I don't
think you can teach purely Socratic-
ally. I don't teach purely Socratic-
ally. There are things that I lecture

high drama. It is one in which you
can't say "I am unprepared" to a
judge or to your client or to the per-
son with whom you are negotiating.
I must say, at the risk of being ac-
cused of being an old fuddy-duddy
and Attila the Hun and all of that,
that a law school environment that
is preoccupied with sensitivity — to
the exclusion of building strong, dy-
namic, intense professional instincts
of preparation, of thought, of re-
sponsibility, of analysis — is just an
education system that is off the
track. I know it is fashionable these
days, since most younger academics
come out of the student revolution
period, to do it in a very relaxed
manner and I certainly wouldn't
want a faculty of 70 people who all
behaved like Attila the Hun. But I
think a mixture of people who treat
their classroom as if it is a courtroom
and those who are more gentle and
on a first-name basis and wear
turtleneck sweaters is probably a
good idea. I really and truly mourn
the loss of intensity and direction
and drive in the classrooms of many
American law schools.

I think in retrospect it is better to
say that in my earlier years as a
teacher, in the mid '60s, I was very
much like Kingsfield. I insisted on
preparaHon. There were Hmes when
I would literally throw somebody
out of class for being unprepared.
What caused the change?
You roll with the times. What was
acceptable in the '60s in terms of

Center Publishes Paper on
Taxation of Attorneys' Fees

In response to a call for study of
alternative means of managing the
increasing number of attorney fee
petitions in the federal courts, the
Center recently published Taxation
of Attorneys' Fees: Practices in Eng-
lish, Alaskan, and Federal Courts, by
Alan J. Tomkins and Thomas E.
Wilkins. The report describes the
distinctive approaches to taxation
of attorneys' fees that have
evolved in the English, Alaskan,
and U.S. federal court systems.

In England, where fee shifting
from the losing to the winning
party is the norm, taxing masters
and a large clerical staff undertake
the calculahon and assessment of
attorneys' fees from a centralized
office in London, in addition to
whatever taxing of attorneys' fees
is done locally. In Alaska, with a
pervasive statutory system of fee
shifting, the use of fee schedules
and relatively informal procedures
allows judges to make quick, often
intuitive judgments about fees
without a major investment of re-
sources. To manage the growing
number of fee petitions in federal
courts, these courts have devel-
oped a diverse set of innovative
approaches to fee taxation.

After outhning the approaches
of the three systems, the authors
examine further possible applica-
tions of the various approaches to
the federal system, focusing on
three primary issues: whether pro-
cedures should be standardized,
whether new fee decision makers
should be substituted for the judi-
cial officer who hears the case, and
whether the taxation function
should be centralized.

Copies of this report can be ob-
tained by writing to Information
Services, 1520 H St., N.W., Wash-
ington, D.C. 20005. Please enclose
a self-addressed mailing label,
preferably franked (16 oz.), but do
not include an envelope.

MILLER, from page 10
sion about maintaining your own
effectiveness as a teacher. If you
push too hard, if you hit people too
hard, they will just go away; they
wih close down. So, instead of the
hammer I went to the rubber mal-
let— not quite the velvet glove. I try
:o maintain the intensity by telling
?verybody, "It is a collaborative, in-
ense process. Let's work hard. Let's
ihare." So, I just felt that by backing
)ff a little bit I could stay in tune
vith the sensiHvity that followed.

You are doing a study for the
American Law Institute. Please tell
IS about that.

The American Law Institute has
ommissioned a preliminary study
0 look at complex litigation— tzg
ases— to see if there are things we
an do with a wide range of sub-
Krts: the federal rules, the subject-
latter jurisdiction principles we live
ath, venue principles, removal,
he chairman of the advisory com-
littee is Justice Wilkins of Massa-
lusetts. Our job is to determine the
;asibility of, in effect, building a
Jtter mousetrap for complex cases
id to recognize that we need more
itersystem cooperation. A jet plane
)es down and you end up with 50
ises. A product failure produces
indreds of pieces of litigation— like
le asbestos cases. Can we devise
;tter procedures, better subject-
atter jurisdiction rules, better co-
)eration between courts, state and
deral, new notions of choice of law

handle these monstrous — and
at's what they are — cases? They
e like millstones on the back of our
dicial system.

And they cause bankruptcies.
That's right. Tying up judges for
ars and years and years. And we
ow asbestos is not a unique situa-
n. Today's asbestos will be tomor-
w's toxic dump phenomenon. Our
) is to spend two years to prepare
eport to give to the Institute so
it the Institute can decide whether
commission a full project that
ght produce something like the
.1 study in the late '60s on the di-
iion of jurisdiction between the

state and the federal courts. In a cu-
rious way this project might be
thought of as "son of the old divi-
sion of jurisdiction study" — which
was a brilliant study.

Do you have the feeling your stu-
dents are a little bit frightened of
you at first? Do you get them first
year?

Yes. I have, and always have had,
the experience of teaching a big, full-
year course in civil procedure to,
now, one-fourth of the first-year stu-
dents at the Harvard Law School.
There is a cult about me that I am
Kingsfield from the "Paper Chase"
program. The cult is perpetuated by
upper-class students who love to ter-
rorize the first-year students. In
other words, a first-year student, by
the time that student walks into my
class, has been told by a third-year
student it is going to be "blood and
guts" in there, and I am amused by
it because I am nothing like that. I'm
a pussycat. One of the things that
bugs me is when students of mine
from 10 to 20 years ago come to the
law school to do interviewing for
hiring, and they sneak into the back
of my class and they watch me teach
today. At the end of the class, they
come up to me and they are furious.
They say, "You have become a
Casper Milquetoast. You are too
gentie; you are too nice. The reason
I remember civil procedure, the rea-
son I am a litigator, is because you
forced me to learn. You created an
environment in which it was literally
easier for me to study and be pre-
pared than to go through the emo-
tional risk of being unprepared and
being embarrassed."

You mean the 10-volume Charles
Alan Wright jurisdiction study?

Yes. That was by Charles Alan
Wright and Dick Field, and it is a
brilliant piece of work that never
was actualized. There was not
enough pressure in Congress to do
anything about it. This time there is
such recognition that we are in crisis
on the civil side with these new
types of cases that maybe something
can be done.

■ 11

BULLETIN OF THE /KtjK
FEDERAL COURTS ^i^

An ABA commission chaired by
Justin Stanley released a report in
August that concludes that many as-
pects of the practice of law in this
country should be changed. Do you
agree?

I think these are bad days for the
American legal profession. I think
the image of the American lawyer
today is the image of people flocking
to Bhopal, flocking to the crash of
Delta 191 in Texas. I think the pro-
fession has got to get ahold of itself.
We have got to clarify some of the
rules about professionalism. You
can't pick up any of the legal jour-
nals, any of the legal newspapers,
any of the major newspapers in this
country without seeing an article
about law becoming a business — be-
cause of the scale, the stakes and the
money, the masses of young people
being churned out by the law
schools and then chewed up by the
big firms, and the escalation in start-
ing salaries. I think it is a good time
to step back and take a very close
look at who we are, because I think
we are in danger of losing our
way. n

Position Available

Administrative Assistant to the
Chief Justice of the U.S. Statutory po-
sition. Reports to the Chief Justice. Re-
sponsibilities include providing admin-
istrative assistance in the Chief Justice's
nonadjudicatory responsibihties, in-
volving the Judicial Conference, FJC,
and AO; serving as liaison with the ex-
ecutive and legislative branches, state
organizations, and private organiza-
tions; assisting in the preparation of ad-
dresses and publications; participating
in the Chief Justice's internal manage-
ment of the Court, including budget,
personnel, and other administrative
matters. Must have J.D. or Ph.D. or
equivalent, 10 years' relevant experi-
ence, familiarity with the federal judici-
ary, commitment for as few as 2-3
years. Salary commensurate with expe-
rience, not to exceed that of a U.S. dis-
trict judge. Send resume and no more
than 3 letters of reference by Nov. 17,
1986, to Elizabeth L. Saxon, Personnel
Officer, U.S. Supreme Court, Washing-
ton, DC 20543 (202/479-3404).

EQUAL OPPORTUNITY EMPLOYER

12 £&

THE

BRANCH

AO, from page 3

share of the judiciary's staffing and
budget levels has declined substan-
tially over the last few years.

The report recommends that the
AO take a more active role in help-
ing the courts in dealing with the
General Services Administration,
that it be freed from the "bureau-
cratic red tape" imposed by civil
service laws and the Office of Per-
sonnel Management, that it continue
to work openly and cooperatively
with the U.S. Marshals Service to
improve court security, and that it
improve its relationships with mem-
bers of Congress to see that Judicial
Conference-recommended legisla-
tion is introduced promptly and pur-
sued vigorously. The committee also
suggested that the future relation-
ship between the AO and the FJC
may require further study by the
Conference.

The committee concluded that "no
fundamental change in the structure
of the office is needful or wise." The
committee did find, however, "that
there is demonstrated need for a
more efficient and responsive ad-
ministration of the responsibilities of
the AO." The committee expressed
its belief that "Mr. Mecham has a
full understanding of this need,"
and that he "has already taken ac-
tion to effect remedies in many
areas." ^

CONFERENCE, from page 1

• Approved the transmittal to the
Supreme Court of amendments to
the bankruptcy, civil, and criminal
rules, and recommended Supreme
Court approval and transmittal of
them to Congress; also approved
amendments to the civil, criminal,
and evidence rules to eliminate all
gender-specific language.

• Directed the AO to study the
possibility of the judicial branch's
undertaking its own building de-
sign, leasing, construction, and
maintenance.

• Voted to oppose any change in
28 U.S. C. § 569, which provides that
U.S. marshals "may, in the discre-
tion of the respective courts, be re-
quired to attend any sessions of
court."

• Authorized a temporary in-
crease in court reporters' transcript
rates for transcripts not paid for by
the government.

• Agreed to numerous changes in
official duty stations and places of
holding court for bankruptcy judges.

• Reviewed a report of the Judicial
Council of the Court of Appeals for
the Eleventh Circuit concerning
Judge Alcee L. Hastings and invited
Judge Hastings to submit a written
response.

Congressman Neal Smith (chair-
man of the House Appropriations
Subcommittee on Commerce, Jus-

tice, State, the Judiciary, and Related
Agencies), Congressman Robert W.
Kastenmeier (chairman of the House
Judiciary Subcommittee on Courts,
Civil Liberties and the Administra-
tion of Justice), and Attorney Gen-
eral Edwin Meese III addressed the
Conference. B

BULLETIN OF THE FEDERAL COURTS

theTHIEDbranch

BICENTENNIAL, from page 4

the branches of the federal govern-
ment contribute to the preservation
of individual liberty and the func-
tioning of our government?" All
entries must be postmarked by Apr.
15, 1987. Entry forms and rules are
available from Education Program,
Commission on the Bicentennial of
the U.S. Constitution, 736 Jackson
Place, N.W., Washington, DC
20503. ,

• The American Judicature Society I
has put out a call for manuscripts to
be published in Judicature for a sym-
posium issue devoted to the Consti-
tution. The topic suggested is "the
relationship between the Constitu-
tion and the judicial system, with!
particular reference to Article III and
Amendments IV through VIII."
Other subjects such as judicial inde-|
pendence and judicial federalism are
acceptable, however. Publication is
planned for the August-September
1987 issue, and manuscripts should
be submitted by Mar. 15, 1987, to
the AJS office, 25 E. Washington St.,
Chicago, IL 60602. ■

First
Class
Mail

Vol. 18 No. 11 November 1986

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

Official Business

Postage and

fees paid

United States

Courts

U.S. GOVERNMENT PRINTING OFFICE 198^491-221^0007

10.3/a:

BULLETIN OF THE FEDERAL COURTS

-,', ' M r ^

)nn

:hief Justice Sends Holiday Message; Notes Progress, Challenges

I am delighted to take this oppor ^

VOLUME 18
NUMBER 12
DECEMBER 1986

jnity to extend a holiday greeting
D my colleagues on the federal
ench and to our extended "court
imily." I am still in the process of
etting my feet wet in my job as
hief Justice, and I owe much to
hief Justice Burger for his gracious
jsistance in "showing me the
)pes." My appointment as Chief
istice has surely not lessened the
)nd I feel with my fellow judges;
deed, by assuming the office of
tiief Justice my opportunities and
)ligations to maintain the health
id welfare of the federal judiciary
ive dramatically increased. I cheer-
ily accept that responsibility, and
Dk forward to working with other
dges, the Administrative Office,
d the Federal Judicial Center in
?eting the challenges that face our
urts. I ask for your wise counsel,
ur help, and your patience as I
gin.

Under the leadership of Chief Jus-
? Burger, progress has been made
er the last year on a number of
nts. The Judicial Survivors' An-

nuities Reform Act was signed by
the President on June 19, providing
a floor of financial security to
spouses and children of deceased
federal judges. We all will be watch-
ing closely the progress of the rec-
ommendations of the Commission
on Executive, Legislative, and Judi-
cial Salaries, which will be submit-
ting its report to the President by
Dec. 15. Thanks are due to Judge
Coffin and the other members of the
Committee on the Judicial Branch for
their extra efforts in support of the

dge Wisdom on Courts' "Federalizing" Role,
dicial Independence, and Size of Circuits

'dge John Minor Wisdom was born
iew Orleans, received his A.B. from
'hington & Lee University and his
B-.from Tulane Law School, and
ticed law in New Orleans from 1929

to 1957. From 1938 to 1957, with an in-
terruption for military service, he also
taught law at Tulane. The judge served
in the U.S. Army during World War II
and was separated from the Army in
1946 with the rank of lieutenant colonel.
Nominated to the Fifth Circuit in
1957, Judge Wisdom has served as a
member of the Judicial Panel on Multi-
district Litigation (1968-79), and as the
panel's chairman (1975-79), and for
three years on the Advisory Committee
on Appellate Rules. He has also served
since 1975 on the Special Court orga-
nized under the Regional Rail
Reorganization Act of 1973. Judge Wis-
dom is the author of numerous scholarly
publications and the recipient of a num-
ber of honorary degrees and awards, in-
See WISDOM, page 4

work of the Commission. In October,
Congress authorized an increase in
the number of bankruptcy judges
from 232 to 284. As soon as an ap-
propriation is added to this authori-
zation, our hard-working corps of
bankruptcy judges can look forward
to some relief.

As the new Chairman of the Judi-
cial Conference, I shall be open to
suggestions as to how the work of
the Conference can be furthered.
The Conference has authorized me to
appoint a committee to review the
way the Conference operates and to
evaluate the adequacy of the current
committee structure. The last time
such a committee sat was in 1968,
and I thought it was time for another
look at the subject.

Mrs. Rehnquist and I wish you
and your families — wherever you
may be throughout our broad land—
a joyful holiday season and a
healthy and productive New Year.

Sincerely,

\)\-^

New Drug Act Will .,\
Have Impact Upon
Courts' Caseload

The Omnibus Drug Enforcement^,^^
Education, and Control Act of 1986,
passed by Congress (H.R. 5484) and
signed by the President as P.L.
99-570 on Oct. 27, includes a number
of provisions either directly affecting
the judiciary or of interest to it. The
legislation:

• Authorizes $17 million for FY
1987 for the U.S. Marshals Service.

• Authorizes an additional $124.5
million for the federal prison system
in FY 1987.

• Authorizes $2 million for the Jus-
tice Department's Bureau of Justice

See DRUGS, page 9

hftV

•■■■y-'j-:'::-

•i

theTH

BRANCH

FY 1987 Appropriation Authorizes 3 Percent
Cost-of-Living Raises, Filing Fee Increases

The federal courts' fiscal year 1987
appropriation provides a total of
$1,192,592,000 in budget authority
for the judiciary, an increase of
$161,435,000 over FY 1986. The
budget includes $37,500,000 appro-
priated under a separate title, the
Omnibus Drug Supplemental Appro-
priation Act of 1987. (See story on
omnibus drug legislation, p. 1.) It
also provides for a cost-of-living sal-
ary increase of 3 percent, effective as
of the first day of the first pay period
commencing on or after Jan. 1. Jus-
tices and judges of the United States
will also receive this increase.

Several separate appropriations
for the salaries and operations of the
court system have been consolidated
into a single appropriation, "salaries
and expenses," w^hich will provide
flexibility to reprogram funds be-
tween personnel and general operat-
ing expenses when needed.

The FY 1987 budget authorizes 540
additional positions for clerks' of-
fices and probation and pretrial serv-
ices offices (with total staffing still
capped by Congress at 94 percent of

the Judicial Conference-approved
formula allowances), 7 new full-time
magistrates and their supporting
staffs, and 124 other supporting
personnel.

Fees collected for the preparation
and mailing of bankruptcy case no-
tices will be used to offset the
salaries and expenses incurred in
providing these services. Since the
FY 1987 estimate for such fees totals
$3 million, a reduction of $3 million
was made to "expenses of operation
and maintenance of the courts."

Filing fees. The legislation has
doubled the fee for filing civil cases
from $60 to $120, and has raised the
fee for filing in bankruptcy court
from $60 to $90. The Judicial Confer-
ence Committee on the Budget last
March had proposed consideration
of an increase in filing fees. Al-
though the Judicial Conference
Committee on the Budget had made
its recommendation with the expec-
tation that the increased fees could
go into a special account for use by
the courts, these increases will be
See BUDGET, page 8

Sixth Cir. Hosts Innovative State-Federal Meeting

The Sbcth Circuit, in a variation on
the usual format of state-federal judi-
cial council meetings, held a meeting
that included judges from all of the
states embraced by the circuit. Chief
Judge Pierce Lively invited judges

THETHIRD BRANCH

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.

Co-editors

from Kentucky, Michigan, Ohio, and
Tennessee to a one-day meeting in
Cincinnati with four appellate and
four district judges.

Chief Justices Frank Celebrezze
(Ohio) and Ray Brock (Tenn.) and
Associate Justices Donald Winter-
scheimer (Ky.) and James H. Brickley
(Mich.) were accompanied by six
state intermediate appellate and trial
judges. The heart of the agenda was
a presentation on recent habeas
corpus developments by Professor
Ira Robbins of the Washington Col-
lege of Law at the American Univer-
sity.

On a related matter, prisoner civil
rights suits. Chief Judge Lively called
the group's attention to the provi-
sions of 42 U.S.C. § 1997e, which al-
lows federal judges to continue pris-

JSAS Reminder

Article III judges are reminded
that from now through March
1987, a one-Hme Judicial Survivors'
Annuities System (JSAS) "open
season" is being held, during
which new coverage may be
elected or existing coverage may
be withdrawn.

Judges presently covered by
JSAS who wish to retain their
coverage need take no action.
Judges who previously waived the
right to elect coverage under JSAS
within six months of assuming ju-
dicial office or subsequent marriage
may now elect such coverage. This
is a one-time election opportunity,
and such election is irrevocable. A
completed AO Form 162, Election to
Participate in the Judicial Survivors'
Annuities System, must be received
by Mar. 31, 1987, by the AO, JSAS
Section, Washington, DC 20544.

Judges currently participating in
JSAS who now wish to revoke such
election may do so. This is a one-
time opportunity to revoke election
to participate. Revocation must be
in writing and received by the di-
rector of the AO no later than Mar.
30, 1987 (no special form is re-
quired; a letter is sufficient).

Judges are reminded that before
making a final decision concerning
JSAS, they should consider life in-
surance coverage offered either by
private companies or through the
federal employees' program, as an
addition or alternative to JSAS.

More detailed information about
the open season is provided in a
Sept. 26 memorandum from AO
Director Mecham to all Article III
judges.

oner § 1983 filings for 90 days to
allow exhaustion of prison grievance
procedures if those procedures have
been determined, either by the At-
torney General or the district judge in
the case, to be "in substantial com-
pliance with minimum acceptable
standards."

The FJC continues to provide fund-
ing for federal judges' attendance
and for some programs at state-
federal council meetings. B

BULLETIN OF THE /ffjK
FEDERAL COURTS ^1*^

Ninety-ninth Congress Ends Session with CJA,
Bankruptcy and Immigration Changes

The following legislative items,
enacted in the closing days of the
?9th Congress, are of interest to the
udiciary. (See also related stories on
the budget, p. 2, and on omnibus
irug legislation, p. 1.)

Criminal Justice Act. H.R. 3004,
imending the Criminal Justice Act
CJA), has been signed by the Presi-
lent. The bill amends the CJA provi-
ions relating to fees for court-
ppointed attorneys in criminal
ases, and the provisions relating to
he recall to service of certain judges
nd magistrates.

House Judiciary Committee mem-
ers Robert Kastenmeier (D-Wis.)
nd Carlos Moorhead (R-Cal.)
Dsponsored the legislation amend-
ig the CJA, which was introduced at
\e request of the Judicial Con-
■rence. The bill retains current law
ithorizing houriy rates of up to $40
1 hour for out-of-court representa-
3n and $60 an hour for in-court re-

• ••***

**••**

jcember 1786: Rebellion broke out
ross New England as angry farmers
•sed down courts, ordering judges in
e Massachusetts county "not to open
d courts, at this time, nor do any kind
business whatsoever" lest their judg-
!nts "by reason of the great scarcity of
ih ... fill our gaols with debtors." The
mers, beset by creditors and tax col-
tors and angry at the state's suspen-
n of the writ of habeas corpus, were
ight up in a larger crisis caused partly
the lack of any central authority to
ulate foreign trade and by the dearth
hard currency throughout the states,
lys's Rebellion was quelled by June,
t not before casting what John
rshall called "a deep shade over the
;ht prospect which the revolution in
lerica and the establishment of our

'■ governments had opened up I

r that we may live to see another
alution." ^^^^^

ENTENNIALOF .^^^^^^^^^'^

^^ THE U.S. CONSTITUTION

presentation under the CJA. The bill
allows payment of up to $75 per hour
if the Judicial Conference determines
a higher rate is justified for a particu-
lar district or circuit. The new general
maximums per case would be $3,500
for a felony, $1,000 for a misde-
meanor, $2,500 for appeals, and $750
for other cases — modest increases
over the previous amounts. These
maximums can be waived by the
chief judge of the circuit or his or her
designee. The bill also makes other
technical changes in the CJA re-
quested by the Judicial Conference.

The bill as passed also provides
for the recall to service of U.S. mag-
istrates who have retired. (Similar
authority already existed to recall to
service bankruptcy judges and
judges of the U.S. Claims Court.)
The bill also enhances the system for
the recall of magistrates, bankruptcy
judges, and judges of the Claims
Court.

In the past, bankruptcy judges and
Claims Court judges recalled to serv-
ice were effectively required to
"punch a time clock" for the first
time in their careers; for the hours
that such an official was working, re-
tirement annuity was deducted from
the official's pay, with the result that
the judge provided full-time service
for part-time pay. Moreover, there
was no guarantee that such an official
would be recalled for more than one
assignment, creating uncertainty as
to the amount of income he or she
could anticipate.

The bill improves the situation by
providing that the circuit judicial
council, or the chief judge of the
Claims Court, can certify that an of-
ficer recalled to service will perform
"substantial service" during a five-
year period of recall. During the five
years, the judge or magistrate will
receive the difference between the
retirement annuity and the salary of
the position. The Judicial Conference
is authorized to promulgate regula-

Spanish/English Interpreting
Test To Be Given

The written test for Spanish/
English federal court interpreters
wiU be given on Mar. 7, 1987, the
only time the test will be given in
1987. All applications must be
postmarked no later than Dec. 31,
1986. An oral test for candidates
successful in the written test will
be given in the summer of 1987.
Persons who successfully complete
these tests will be placed on an eli-
gibility list from which court inter-
preters may be selected.

The written and oral tests are
given only in certain cities. The fee
is $25, and the tests are being ad-
ministered by the University of
Arizona Federal Court Project,
Federal Court Interpreters Certifi-
cation Project, Modern Language
Building, Room 456, University of
Arizona, Tucson, AZ 85721, Tel.
602/621-3687.

tions necessary to implement the
new system.
Bankruptcy judgeship legislation.

The bankruptcy legislation passed by
Congress, H.R. 5316, and signed by
the President on Oct. 27, authorizes
the creation of 52 new bankruptcy
judgeships, although it provides no
funds to implement the new judge-
ships. The bill also provides signifi-
cant farm bankruptcy reform. (See
the budget story, p. 2, for additional
information about this bill.)

Immigration bill. The major over-
haul of immigrarion legislation,
S. 1200, was signed by the President
on Nov. 6. The bill includes both
civil and criminal sanctions against
employers knowingly hiring illegal
aliens, an increase in the penalties
for document fraud, and provisions
for improving the documentarion
used to verify employment authori-
zation. The bill provides an amnesty
for illegal aliens who can prove that
they have been resident in the
United States since 1982, as well as
for certain agricultural workers.

An office of special counsel will be

established within the Department

See LEGISLATION, page 9

theTHIEDbranch

WISDOM, from page 1

eluding the Tom C. Clark Equal justice
Under Law award, given by Phi Alpha

Delta.

In the recent tribute to you in the
Tulane Law Review, Judge Elbert
Tuttle states that you turned down
an offer of a circuit court judgeship
four years prior to accepting a
judgeship. Why did you decline
that first offer from President
Eisenhower?

Frankly, in 1953 1 was in the dis-
tasteful position of having a lot of
unfulfilled political commitments 1
had to take care of before accepting
a judgeship. I led the fight for
Eisenhower in Louisiana in 1952,
just as Elbert Tuttle did in Georgia.

You may recall that the decisions
on the convention contests in
Georgia, Louisiana, and Texas deter-

mSONNEL

Appointments

Joel F. Dubina, U.S. District Judge, M.D.

Ala., Sept. 18
Charles R. Simpson III, U.S. District

Judge, W.D. Ky., Oct. 15

Elevations

Robert W. Warren, Chief Judge, E.D.

Wis., Sept. 1
William J. Bauer, Chief Judge, 7th Cir.,

Sept. 29
Charles L. Brieant, Chief Judge,

S.D.N.Y., Oct. 1
Frank H. Freedman, Chief Judge, D.

Mass., Oct. 18

Senior Status

John W. Reynolds, U.S. District Judge,

E.D. Wis., Aug. 31
Constance Baker Motley, U.S. District

Judge, S.D.N.Y., Sept. 30
Andrew A. Caffrey, U.S. District Judge,

D. Mass., Oct. 17
William J. Ditter, Jr., U.S. District Judge,

E.D. Pa., Oct. 19
Robert R. Merhige, Jr., U.S. District

Judge, E.D. Va., Nov. 30

Deaths

Ben C. Duniway, U.S. Circuit Judge, 9th

Cir., Aug. 23
Charles E. Wyzanski, Jr., U.S. District

Judge, D. Mass., Sept. 3
Edwin A. Robson, U.S. District Judge,

N.D. 111., Oct. 21

mined the nomination of Eisen-
hower. Eisenhower supporters in
Georgia and Texas had their
preconvention troubles, but we had
a longer, more difficult struggle to
dislodge the old-line Taft Republi-
cans because of rigged Louisiana
laws designed to keep the Repub-
lican Party small. Anyway, I had
lunch with Elbert before talking with
Herb Brownell, then attorney gen-
eral, who was the real political gen-
ius in the Eisenhower nomination. I
explained my reasons for declining a
judgeship and highly recommended
Elbert. My recommendation was un-
necessary, except to show that I did
not regard the judgeship as Louisi-
ana's seat on the court. Herb was
well aware of Elbert Tuttie's qualifi-
cations. Elbert was then general
counsel for the Treasury Depart-
ment, so it was some time before he
could leave that position.

It was an act of God that Elbert
was the first Eisenhower appointee
to our court. He made a much better
chief judge during the critical years
of civil rights turmoil than I would
have made. And I am not just trying
to be modest. I consider Elbert
Tuttle and Henry Friendly two of
the finest judges on the federal
bench during my Ufetime. Alvin Ru-
bin is right up there too. That's a
long, circuitous answer to a simple
question.

Was the court of appeals, rather
than the district court, your first
choice?

The court of appeals was my only
choice. I would not have made a
good trial judge. 1 do not like to
shoot from the hip, and in the
course of a trial a district judge has
to shoot fi-om the hip. I prefer taking
my time over a case, sometimes too
much time. I like to write and re-
write and then rewrite. I admire
good trial judges. 1 respect them and
I consider experience as a trial judge
a very valuable asset for an appellate
judge. It is not only valuable for the
judge but it is good for the morale of
the system for federal trial judges to
be promoted to the court of appeals.
There should be more district judges

promoted to the courts of appeals.
But I was just not cut out to be a trial
judge.

Specialized courts in the federal
system have been the subject of dis-
cussion for many years. Do you
favor the concept of having special
courts, or do you adhere to the con-
cept that the federal judges are and
should remain generalists?

Well, I believe in a generalist con-
cept for most courts, including the
courts of appeals; however, the Spe-
cial Railroad Court was an absolute
necessity. The litigation was mas-
sive. You have no idea how massive
it was. I guess 1 had 30 or 40 shelf
feet of briefs and other Railroad
Court legal material. A special court
was necessary for that type of litiga-
tion.

I do not object to a special court
for tax law, for patents, and for a
few other subjects, including Social
Security cases. It is a bit ridiculous
for the courts of appeals to have to
review appeals on Social Security
cases which have already gone
through the agency system and the
district court. Although I feel that
appellate judges must become
generalists, if they are not already, I
feel certain that a good lawyer will
make a good judge, regardless of
how specialized his practice might
See WISDOM, page 5

Calendar

Dec. 3 Judicial Conference Advisory
Committee on Appellate Rules

Dec. 3-5 Workshop for Judges of the
Eighth and Tenth Circuits

Dec. 4 Judicial Conference Committee
on the Judicial Branch

Dec. 4-6 Workshop for Judges of the
Sixth Circuit

Dec. 11-12 Judicial Conference Com-
mittee on Administration of the
Magistrates System

Dec. 15-16 All Judicial Conference Sub-
committees of the Committee on
Court Administration: Supporting
Personnel, Judicial Statistics,
Federal-State Court Relations, Ju-
dicial Improvements, Federal Ju-
risdiction

VISDOM, from page 4

have been. Judge John Brown, for ex-
ample, specialized in admiralty, but
lie has been an exceptionally fine,
/ersatile judge.

Going back to the Railroad Court,
nost of our time was spent on con-
titutional questions and statutory
nterpretations. For administrative
aw questions, we had a great au-
hority in Henry Friendly. For a time
'arl McGowan served on the court,
le is extremely well informed on
ailroad law, besides being an out-
tanding judge.

The Special Court was created un-
er the Regional Rail Reorganiza-

"l Strongly disapproved
of splitting the Fifth
Circuit ... in the '60s
.... I disapproved
of it in 1981. 1 disap-
prove of it now."

ion Act of 1973. You became a mem-
er of this court in 1975, and presid-
es judge last April. Did you raise
ny objections to taking on this ad-
itional assignment? Why did you
lect not to use special masters?
We considered using special mas-
!rs, but decided that the use of
lasters — studying their reports —
ould double the time we would
ave to spend on the work. All of
le judges on the court and most of
le lawyers who were involved
dnk that it was a wise decision.
So you became a specialist
)urself.

Not really. No one could feel like
speciahst in the presence of Henry
iendly, who had so much special
id, for that matter, so much gen-
al knowledge of the law.
Was your routine workload re-
iced to accommodate this extra
tivity?

The Special Court was a lot of
ark but 1 did not reduce my rou-
»e work until I assumed senior sta-
s. I still sit more often than the ac-
'e judges. For example, I will sit

nine times (four-day weeks of
twenty cases) this term, not
counting hearings of the Special
Court. AcHve judges in the Fifth Cir-
cuit sit seven times. But I don't do as
much work as they do, because they
handle screening, administrative or-
ders, en banc hearings, and other
matters which I do not handle. And
I manage to get in a little bridge at
lunch.

You have written approvingly
about the important role played by

■ 5

BULLETIN OF THE /VfTK
FEDERAL COURTS ^i^

seems to have been lost in the glori-
fication of states' rights. Our (with a
little o) federalism works because of
the supremacy of what is called
"federal law" but is really national
law. I do not like to see it whittled
down. The views of some persons
suggest that they think that the
country is still operating under the
Articles of Confederation.

I would get rid of diversity juris-
diction. It has long outlived its use-
fulness. There is nothing wrong

federal courts in your circuit in
ensuring the rights of defendants in
state criminal proceedings. You
have also said that the "only sensi-
ble solution to the problem of over-
loaded [federal] courts is a major re-
duction in federal jurisdiction," Did
you have specific statutes in mind?
I feel strongly that Congress some
day will have to face up to the fact
that the question of overloaded fed-
eral courts cannot be solved by
adding judges and splitting circuits.
What must be done is to greatly re-
duce federal jurisdiction, but I
would not do so to any major extent
in criminal proceedings. I must say,
however, that I am strongly op-
posed to the ongoing process of ex-
tending Younger v. Harris. I would
curtail the expansion of Younger v.
Harris and its progeny. Abstention is
out of hand. The proper applicability
of section 1983 (which was the main
part of the Civil Rights Act of 1871)

with our state courts, and there is no
reason why they shouldn't handle
diversity cases. It is downright silly,
for example, for a panel of three
Texas judges, as sometimes hap-
pens, to make an educated guess on
the meaning of an article in the
Louisiana Civil Code. Certification is
not a good solution, because it is
cumbersome, time-consuming, and
increases litigation costs. Some-
times, too, a state supreme court
tells us that we asked the wrong
question or that we should decide
the question ourselves. 1 know that
many say that it is politically
unrealistic to talk about abohshing
diversity jurisdiction, but I hear that
objection about many legislative
reforms.

Is it the trial lawyers who stop it
in Congress?

That is probably true. They have

See WISDOM, page 6

THETHIRD BRANCH

WISDOM, from page 5
some very persuasive advocates,
some very distinguished law-
yers— John Frank, for example.
Aside from the burden of the case-
load, one of the troubles is that the
civil jury in diversity cases has run
wild. (I am aware of opiniolri to the
contrary.) But far be it from me to
slander a system sanctified in this
country; mistakenly linked with
Magna Carta, but aboUshed in En-
gland in 1933.

Among other things you have
served on the Judicial Panel on Mul-
tidistrict Litigation. Over the years
have you seen progress made in pro-
cedures for complex litigation and
how the work of this panel has de-
veloped? Do you have suggestions
for further improvements?

I served on the Multidistrict Panel
for about 10 years and succeeded Al
Murrah for a number of years as
chairman or presiding judge. Let us
not forget the transferee judges, the
judges to whom these cases are
transferred for trial. These cases are
burdensome and often very compli-
cated. The early heroes were Al
Murrah, Bill Becker, Ed Robson,
Hubert Will, Joe Estes, and a few
others I could mention, especially
those who worked on the first Man-
ual for Complex Litigation. Sam
Pointer has recently done a monu-
mental job in revising the Manual.
The practical value of the Manual and
the examples furnished by the trans-
feree judges who have handled these
complicated cases and exchanged
ideas cannot be overestimated as a
substantial step forward in our pro-
cedural process.

They were the pioneers when so
many of the electrical equipment
cases were filed all over the
country.

Yes, they got the idea together,
and there are some of these and,
later, other judges whose names 1
have omitted. Ed Weinfeld was a
tower of strength on the panel. He is
a tower of strength on any court,
committee, or whatever he does.

It is an important part of federal
court history.

Yes. Somebody should do a good
law review article on the
Multidistrict Panel, and somebody
should do a good law review on the
Railroad Court. I discussed the Rail-
road Court briefly in an article 1
wrote as a tribute to Henry Friendly
in the Pennsylvania Law Review, and
Henry discussed it in a recent issue
of the Tulane Law Review. Each de-
serves a study in depth.

"[W]e have too many
en bancs .... En bancs
undermine the force
and legitimacy of panel
decisions."

You have written that you consis-
tently disapproved the splitting of
the Fifth Circuit, and you referred
in this context to the "federalizing
function" that a circuit court ful-
fills. Would you elaborate, please.

Well, you touched a nerve there. I
strongly disapproved of splitting the
Fifth Circuit some years ago, back in
the '60s, when it was a ploy to re-
duce the authority of our court in
civil rights cases. 1 disapproved of it
in 1981. I disapprove of it now. 1 dis-
approve of it on principle, wholly
aside from civil rights. Federal
judges are appointed to carry out ju-
dicially national and federal policies.
The broader the base on which their
selection rests the less exposed they
will be to what 1 call parochial prides
and prejudices, many of them deep
in our subconscious. We are able to

perform our federalizing function
better if we have a broad base for
the selection of judges. 1 consider
our federalizing function more im-
portant than our dispute-settling
function. This was a function that
was especially important in the '60s
and '70s and is important at all
times. The only good reason — but 1
don't consider it a good enough rea-
son for splitting the circuit — is the
resultant unwieldy character of an
en banc hearing when you have a
large number of judges on a court.
But we have too many en bancs any-
way. En bancs undermine the force
and legitimacy of panel decisions. A
large court need not be unman-
ageable. Take the Ninth Circuit, for
example: Jim Browning and the
other judges on that court are doing
a superb job, regardless of the num-
ber of judges on the court. There is
nothing wrong with having a large
number of judges on a court. You
get a better mix of judicial and
nonjudicial backgrounds. It is a
good thing. I would not object to a
circuit composed of noncontiguous
states of different sizes; the improve-
ment of transportation faciUties
makes this idea feasible. The cross-
fertilization of ideas is good for fed-
eral courts. What I am fearful of is
the prospect of further subdivision
of circuits. Perhaps one day we shall
have single circuits for New York,
Texas, California, and Florida.
Should that ever take place, God for-
bid, you can kiss Madison's federal-
ism good-bye.

What about the extra costs
incurred in a large circuit?

The cost is really infinitesimal
compared with the advantages of
not splitting circuits.

Maybe the judicial branch should
be more demanding of Congress.

Well, 1 really don't know. 1 am
sure that we could all use more
money, whether it is the Adminis-
trative Office or the judges. 1 had a
law clerk last year who was
ashamed to tell me how much he
was making, just starting as a law-
See WISDOM, page 7

BULLETIN OF THE /dTK
FEDERAL COURTS '^r^

WISDOM, from page 6
er, because his salary was larger
lan mine.

You have written about "dual fed-
ralism." Would you comment on
lis.

Well, 1 have thought a lot about
lis from time to time. 1 taught a
"lort summer course on compara-
^'e federalism, considering Canada,
ustralia, and the United States. Eu-
)peans generally, and lawyers in
her countries, have never under-
ood why we have a dual judicial
stem. They have workable federal-
ms with essentially one judicial
stem, and I suppose we could too.
It considering the structure of our
•vemment and not just the literal
<t of the Constitution, we have ef-
cted a reasonable compromise of
ntrifugal and centripetal forces
sed on the idea that the states
ould maintain a measure of sover-
5nty. We cannot get away from
at, nor should we. I feel very
ongly, however, that the primary
iction of federal courts is to pro-
it federally guaranteed and feder-
y created rights. This is not the
ice to expound a thesis, but please
not associate me with the term
ual federalism" as some writers
e that term. "Dual federalism" hit
peak in the Dred Scott case. If I
/e a consistent theme in my atti-
le toward federalism, it is that we

tionally or at least recommended to
other circuits?

Well, 1 have a hard time an-
swering that question. The screening
process in the Fifth and the Eleventh
Circuits, by which 50 percent or
more of the cases are disposed of
without oral argument, is a good
system for disposing of frivolous
and semifrivolous cases and the
many cases which are just not worth
argument. It saves the litigant
money, too. It saves the expense of

ize all procedures, especially our ar-
gument procedures.

Regarding the nomination and
appointment of federal judges: Are
you satisfied that we have the best
system for putting a judge on the
federal bench? What characteristics
should be stressed for a judgeship?

That is a very, very difficult ques-
tion. I am satisfied that the best sys-
tem for performing our federalizing
function is one that removes a judge
as far as possible from the regional

There is no substitute for judicial independence/'

a lawyer coming all the way, say,
from El Paso to New Orleans. And it
saves court time. An effective gen-
eral staff of law clerks, headed by a
competent chief counsel, is indis-
pensable to making screening
workable.

I like the First Circuit system of
not having rebuttal in their oral ar-
gument. That is a general rule. The
court will allow rebuttal if the appel-
lant's lawyer is taken by surprise.
But generally speaking there is no
rebuttal in the First Circuit. I find a
rebuttal is just a rehash of the origi-
nal argument, or, what is worse, the
appellant's rebuttal brings up a
point not previously raised. And I
like the system in the Seventh Cir-

"I feel very strongly . . . that the primary function of
federal courts is to protect federally guaranteed and
federally created rights/'

ijoy Jeffersonian rights and
berties in a world projected by
lexander Hamilton and the James
Madison of the Constitution (none

the other Madisons), to whom I
5 back for my understanding of
deralism.

Court history records that you
ive served in many courts of ap-
;als outside the Fifth Circuit,
nee procedures vary from circuit

circuit, did you observe some
at you felt should be adopted na-

cuit of rotating judges. Ideally, there
should be argument in all cases, but
what is attainable or almost attain-
able in the Second Circuit is not pos-
sible in the Fifth, the Ninth, and
Eleventh Circuits.

How do I come out? I come out
with the view that we should let
each circuit work out rules suitable
for its circuit.

We are not ready to nationalize
yet?

No, we are not ready to national-

or local pressures we would get if
judges were elected. That means life
tenure. California has shown that
even a long term and a vote on re-
tention of office threatens the inde-
pendence of judges. Even if some
appointees are subject to criticism
because of legal, political, or eco-
nomic bias, there is a short — to the
point of nonexistence — statute of
limitations that runs on the obliga-
tions supposedly generated by that
bias.

There is no substitute for judicial
independence. A judge's perform-
ance on the bench is something that
is not as predictable as laymen
might think. Oliver Wendell
Holmes, for example, surprised
Theodore Roosevelt. It is a good
thing to have courts of highly indi-
vidualistic judges holding strong
views. It is a good thing to have on
the same court judges who differ
widely in their views.

Do you believe the Senate (espe-
cially the Senate Judiciary Commit-
tee) process is handled well?

It certainly is an essential part of
our system, and I approve of such a
high-level committee. The commit-
tee takes a responsible attitude.
There is necessarily a certain amount
of politics in any senatorial commit-
tee, but it is fair to say that the Judi-
ciary Committee has taken a respon-
sible attitude towards its constitu-
See WISDOM, page 8

^<:

■m^.

£^

THETHKD BRANCH

WISDOM, from page 7

tional duties to the nation. Perhaps it
has been a little too tough on some
nominees, but not too tough on as-
piring nominees generally.

Is it valuable to have the ABA's
involvement in the process, includ-
ing their ratings?

I strongly approved the ABA's in-
volvement. The ABA has a member
of the selection committee from each
of the circuits. Every single Fifth Cir-
cuit representative I have talked with
over the years, and I have talked
with a great many, was a lawyer of
experience and integrity. And often
they do not represent "the Establish-
ment."

One cannot predict with any de-
gree of certainty how judges will
perform on the bench. I repeat my-
self, but I wish to emphasize that
there is not necessarily a correlation
between a judge's performance on
the bench and his background or
supposed bias. A judge's ability,
knowledge, maturity of judgment,
and compassion all improve with ex-
posure to the reaUties of life which
unfold in the cases he hears. It did
in my case — I think.

If you could make procedural or
other changes in the federal court
system, what are some of the things
you would put high on your list?

I feel that the federal system is
healthy now and is in good shape
except for the fact that it is over-

loaded. The highest priority for our
courts is the reduction of that load
by a comprehensive new statute
redefining and narrowing our juris-
diction, certainly including the elimi-
nation of diversity jurisdiction.

Could one of your reasons be that
you feel that the size of the system
dilutes the importance of the fed-
eral judiciary?

Yes, that is true, but it is of lesser
significance than other reasons.

"A judge's ability,
knowledge, maturity
of judgment, and com-
passion all improve
with exposure to the
realities of life which
unfold in the cases he
hears."

There is no doubt that the importance
of our decisions is being diluted
by inconsequential cases. A Social Se-
curity case, for example, which
means so much to each individual —
perhaps the difference between a tol-
erable and an intolerable existence —
in terms of the overall functioning of
the federal court system is not mean-
ingful.

Today in the district courts and the
courts of appeals, there are about
1,000 federal judges (including the
senior judges who continue to

BUDGET, from page 2
deposited to special funds in the
Treasury, where they will act as an
offset against the courts' regular ap-
propriations. (The Bankruptcy
Judgeship Act provides that effective
Nov. 27, 1986, the increase in the
bankruptcy filing fee will be set
aside for the U.S. trustee program.)
AO, FJC, and court security. The
AO appropriation of $29,500,000 is
$1,556,000 above the sum appropri-
ated in FY 1986, although $2,600,000
less than the amount requested. The
increased funding provides for an
additional 17 positions authorized by
Congress. Congress appropriated

$9,600,000 to the FJC for FY 1987, an
increase of $413,000 over the amount
that was available to the Center in
FY 1986 after the reduction resulting
from Gramm-Rudman-Hollings.

The budget also provides
$36,000,000 for court security, which
will provide 226 additional contract
security officers to be phased in dur-
ing the year, for a total of 1,114 offi-
cers by the end of FY 1987.

Need for future appropriations.
Recent legislation authorizes 52 new
bankruptcy judgeships and estab-
lishes a pilot bankruptcy administra-
tor program in Alabama and North
Carolina. However, no money to

serve). Are you saying that we have
too many judges because we have
too many cases?

We have too many judges. I
would rather see our federal jurisdic-
tion cut down and the number of
judges held within more reasonable
limits. Judges would improve in
quality and their opinions would
then engender more respect.

What is the biggest change you
have observed in the federal court
system during your career?

Probably the practice of law. The
size of law firms has increased enor-
mously. That means that the indi-
vidual lawyer is not as much of a
generalist as he used to be. He tends
to be more of a skilled specialist. I
do not really like that. The whole
business of research has changed
since I used to have to pull down
volume after volume of the Digest to
search for the law. Now you punch
a button in LEXIS or WESTLAW and
out comes a printout with all the
cases. The quality of lawyer, how-
ever, is better today than I have ever
seen it before. These young lawyers,
especially our law clerks, are just
about as bright as they can be. They
are becoming good lawyers and,
speaking generally, law schools are
turning out better lawyers — at all
law schools. The top student at a rel-
atively rrunor law school might have
done as well at one of the so-called
major law schools. Better lawyers
See WISDOM, page 9

fund these judgeships has yet been
appropriated by Congress. Requests
for supplemental funds and staff to
support this legislation have been
prepared and will be forwarded to
Congress shortly, as will a Judicial
Conference-approved supplemental
request for 400 deputy clerks to han-
dle a generally increasing bank-
ruptcy filing workload.

The 3 percent cost-of-living in-
crease to become effective in January
1987 is to be funded by means of a
supplemental appropriation. That
supplemental is also to pay for the
cost of funding the new Federal Em-
ployees Retirement System. ^

BULLETIN OF THE JKfjK
FEDERAL COURTS tP

VISDOM, from page 8

Tiean better judges. We have on the

vhole a very superior group of

udges on the federal bench, at all

evels.

How do you stand on state-
federal court relations?

I have a very strong feeling that
:here is a better rapport between
ederal and state judges now than
;ver before. That is an extremely
lealthy thing. It is taking place all
)ver the country. Of course, we do
lot have the problems in the '80s
hat we had in the '60s. You see it in
aw review articles commenting on
he liberalism shown by the state
ourts. Justice Brennan has an inter-
sting article on the subject, for ex-
mple, and there are other articles.
t is certainly apparent to anybody
r^ho has been on the court very
)ng. Just now I am in between two
alves of my professional life. I prac-
ced law for 29 years and I have
een on the court for 29 years. So I
m right in the middle, but on the
Durt long enough to see this hap-
en. I am very happy about this de-
?lopment. m

THE BOARD OF THE
FEDERAL JUDICIAL CENTER

Chairman

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 Director

DRUGS, from page 1

Assistance for a pilot program on
prison capacity.

• Establishes mandatory mini-
mum sentences for various crimes
and authorizes courts, upon the
prosecution's motion, to impose less
than a minimum mandatory sen-
tence if a defendant provides sub-
stantial assistance in the investiga-
tion or prosecution of another
person for a narcotics offense.

• Adds serious drug offenses to
those triggering mandatory mini-
mum sentences under the "armed
career criminal" provisions of the
1984 Omnibus Crime Control Act
(P.L. 98-473).

Budget consequences of new om-
nibus drug enforcement legislation
for the courts. The new drug en-
forcement legislation necessitated
the appropriation of additional
funds to the courts in connection
with an anhcipated increase in drug-
related cases. Thus, a supplemental
appropriation of $37.5 milHon pro-
vided funds to the judiciary for con-
tractual services and expenses re-
lated to the supervision of federal
drug- and alcohol-dependent offend-
ers ($12 million), for anticipated in-
creases in demand for representation
under the Criminal Justice Act ($18
million), and for the anticipated in-
creased juror usage ($7.5 million).

AO Director L. Ralph Mecham
had estimated that the drug enforce-
ment legislation would have a "sub-
stantial impact on the criminal
caseload of the federal courts at both
the trial and appellate levels," and
that in FY 1987 an extra 4,000 criminal
cases, involving more than 8,000 de-
fendants, would result from the leg-
islation.

The projected increased drug-
related caseload will require the sub-
mission of an additional budget re-
quest to provide for 326 probation
and pretrial services officers and
supporting staff, and 60 additional
deputy clerks. ■

Positions Available

Assistant Circuit Executive, U.S.
Court of Appeals for the 9th Cir. Sal-
ary $31,619-44,430. Requires minimum
3 years' court management experience;
education and experience in budgeting,
finance, cost control; legal education
helpful. Open until position filled. Ap-
ply to Circuit Executive, U.S. Court of
Appeals, Box 42068, San Francisco, CA
94142-2068.

Chief Probation Officer, Middle
Dist. Fla. Salary $44,430-68,700. Stahi-
tory position, responsible for probation
and parole and pretrial services pro-
grams in district (see 18 U.S.C.
§§ 3654-55). Requires college degree, 4
years' experience in personnel work
with at least 1 year at level of
supervising probation officer or equiva-
lent in correctional setting. Send appli-
cation and resume by Dec. 19 to
Donald M. Cinnamond, Clerk, U.S.
District Court, Attn: Chief Probation
O/ficer, Box 53558, Jacksonville, FL
32201.

Pre-Argument Conference Attorney,
U.S. Court of Appeals for 6th Cir. Sal-
ary $31,619-41,105. Minimum 3 years'
litigation experience or in position in-
volving structured conflict. Send re-
sume by Dec. 8 to Robert W. Rack, Jr.,
Senior Conference Attorney, U.S.
Court of Appeals for the Sixth Circuit,
Rm. 527, U.S. Post Office & Court-
house Bldg., Cincinnati, OH 45202.

EQUAL OPPORTUNITY EMPLOYERS

LEGISLATION, from page 3

of Justice to investigate and prose-
cute claims of employment discrimi-
nation. Sanctions, including fines
and granting of back pay, may be
imposed against offending employ-
ers. The legislation expands the cov-
erage of title VII of the Civil Rights
Act of 1964 to include claims of em-
ployment discrimination based upon
citizenship, and such claims may be
made against employers of as few as
four persons. Senator Orrin Hatch
(R-Utah), who opposed the bUl, pre-
dicted that these provisions "will
bring about a tidal wave of litigation
that the employers and that the
courts can ill afford." ■

^^^v■.:^•;

>^<

■:->'^'i'".*

'■<i\-

.^■•^'^ "xN*

V\,f<K\

■■<-:■'

'•",4'.\>'>

'.•'■'-'•^

*"'•>**'.'>'

'•\'',

-* '

■■:^

THETHIRD BRANCH

The Source

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 mailing label,
preferably franked (but do not send an envelope),
and addressed to Federal judicial Center,
Information Services, 1520 H Street, N.W.,
Washington, DC 20005.

Carliner, David. "The Role of the
Courts in Immigration Law." 25 Judges'
Journal 13 (Spring 1986).

Caron, Wilfred R. "Federal Judicial
Power: The Constitutionality of Legisla-

tive Encroachment." 34 DePaul L. Rev.
663 (1985).

Casto, William R. "The Federal
Courts' Protective Jurisdiction Over
Torts Committed in ViolaHon of the Law
of Nations." 18 Connecticut L. Rev. 467
(1986).

Elliott, E. Donald. "Managerial
Judging and the Evolution of Proce-
dure." 53 University of Chicago L. Rev. 306
(1986).

Hazard, Geoffrey C, Jr. "Principles m
Legislahon." 41 Record of the Association of
the Bar of the City of New York 685 (1986).

House, Calvin. "Preclusion by State
Judgment in Cases Involving Exclusive
Federal Jurisdiction." 13 Western State
University L. Rev. 435 (1986).

Kammen, Michael. A Machine That
Would Go of Itself— The Constitution in
American Culture. Knopf, 1986.

Kilgarlin, William W., and Scott A.
Ozmun. "Contempt of Court in
Texas— What You Shouldn't Say to the
Judge." 38 Baylor L. Rev. 291 (1986).

Knight, B. B., and S. T. Early, Jr. Pris-
oners' Rights in America. Nelson-Hall Pub-
lishers, 1986.

Meese, Edwin, 111. Remarks at the Uni-
versity of Richmond, Constitution Day,
Sept. 17, 1986.

Weinstein, Jack B. "Adverse Effect of
Budget Cuts on Justice in the Federal
Courts." ABA Panel on Gramm-Rudman-
Hollings, Annual Meeting, New York,
Aug. 10, 1986.

BULLETIN OF THE FEDERAL COURTS

theTHIRDbpanch

First
Class
MaU

Vol. 18 No. 12 December 1986

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

Official Business

Postage and

fees paid

United States

Courts

U.S. GOVERNMENT PRINTING OFFICE 19W^49 1-221 -40008

BULLETIN OF THE FEDERAL COURTS

u^iif 1^

G9C.

BRANCH

^^ I^x to Volume 18, January to December 1986

Adams, Arlin M.

Chairman of Bicentennial Judicial Speakers

Committee 11;4

Tribute to C.J. Burger 7:13

Ad Hoc Advisory Committee of Judges

Appointed by C.J. Burger to examine AO 2:4

Submits report 11:3

Administrative Office of the U.S. Courts

Ad Hoc Advisory Committee of Judges
examines 2:4

Ad Hoc Advisory Committee of Judges
submits report on 11:3

Directed by Judicial Conference to study
possibility of judicial branch undertaking
its own building design, leasing, con-
struction, and maintenance 11:12

Director L. Ralph Mecham interviewed 8:1

James A. McCafferty retires as chief of Sta-
tistical Analysis & Reports Div. 8:3

Reports on judicial workload 1:8

Aldisert, Ruggero J.

Tribute to C.J. Burger 7:2

Allen, Florence

Referred to by Chief Judge Patricia Wald in
interview 7:11

Referred to by Chief Judge Pierce Lively in
interview 6:8

Alternative Dispute Resolution

House subcommittee hearing on Court-
Annexed Arbitration Act of 1986 7:5
See also Arbitration

American Bar Association

House of Delegates of considers report on

professionalism 9:3

Midyear meeting of addressed by C.J.

Burger 3:3

Midyear meeting 4:3

Report on actions at annual meeting 10:2

Task force of issues new newsletter 2:8

American Bar Foundation

Reports on increase in lawyers in U.S. 11:5

American Judicature Society

Invites manuscripts for Judicature sym-
posium issue on Constitution 11:12

American Law Institute

C.J. Burger addresses annual meeting of
Preliminary study of complex litigation by

discussed in interview with Prof. Arthur

Miller

Annuities

President Reagan signs H.R. 3570 to im-
prove annuities program for federal
judges' survivors

Appropriations

Drug enforcement legislation necessitates
supplemental appropriations for
judiciary

House approves appropriations 9 percent
less than judiciary requested

Federal courts' fiscal year 1987 appropria-
tion detailed

Supplemental appropriations bill for juror
fees and allowances

See also Bankruptcy Court

Wald, Patricia M.

Chief Judge of D.C. Cir. interviewed

7:1

Wangelin, H. Kenneth

Holding in case involving Pulliam v. Allen

doctrine

7:3

Weinstein, Jack B.

As member of Ad Hoc Advisory Committee

on the AO

11:3

West Publishing Co.

Confers annual Devitt Award on federal

judges

3:2

Sponsors bicentennial essay contest

9:4

Wheeler, Russell R.

Author of The Writing and Ratification of the

U.S. Constitution: A Bibliography (FJC)

9:1

Named director of FJC's new Special Educa-

tional Services Div.

2:3

White, Byron R.

On death of Potter Stewart 1:8

Remarks at Ninth Cir. Judicial Conference 11:1

Wilkins, William W., Jr.

Sentencing Commission chairman

interviewed 1:1

Willging, Thomas E.

Author of Court-Appointed Experts (FJC) 4:2

Winter, Harrison L.

Tribute to C.J. Burger 7:2

Winterscheimer, Donald

Represents Ky. at Sixth Cir. state-federal
judicial council meeting 12:2

Wisdom, John Minor

Fifth Cir. Judge interviewed 12:1

Women

Report on achievement of judicial office by
women and minorities released by Fund
for Modern Courts, Inc. 2:8

Workload

Analysis of federal courts' workload for 12-
month period ended June 30, 1985, pub-
lished by AO 8:3

C.J. Burger on alarming increase in federal

courts' workloads 2:1

D.C. Cir. workload discussed by Chief
Judge Patricia Wald 7:8

Wright, Charles Alan

Study of federal jurisdiction noted in inter-
view with Prof. Arthur Miller 11:11

BULLETIN OF THE FEDERAL COURTS

theTBIRDbranch

Index to Volume 18

The Federal Judicial Center

DoUey Madison House
1520 H Street, N.W.
Washington, DC 20005

Officia] Business

First
Class
Mail

Postage and

fees paid

United States

Courts

U.S. C0VF:RNMHNT PRINTING OFFICH 1987 181 221 60001

U0 3|3'

BULLETIN OF THE FEDERAL COURTS

>cs

theTI

m /I.

IT'

xi' 'ii.

BKANCH

VOLUME 19
NUMBER 1
JANUARY 1987

Administrative Conference Chairman Discusses
Negotiated Rulemaking, ADR at Agency Level

Marshall }. Breger, Chairman of the
Administrative Conference of the United
States, received B.A., M.A., and J.D.
degrees from the University of Pennsyl-
vania, and a B. Phil, degree from Oxford
University. He served President Reagan
is Special Assistant to the President for
Public Liaison in 1984^-85. He is on leave
kom the faculty at New York Law School.

What is the role of the Administra-
tive Conference and what is its rela-
tionship to the federal judiciary?
fudges Stephen Breyer and Carl
VlcGowan act as liaison between the
ludicial Conference and the Admin-
strative Conference, but how do the
wo conferences interact?

The Administrative Conference is a
jermanent federal advisory agency
hat provides advice and assistance
0 Congress, federal agencies, the
'resident, and the Judicial Con-
erence on improvements in the ad-
ninistrative process. ,. - "

1987 Summer Program

for Judges on

Constitutional Adjudication

The Federal Judicial Center will
hold a special seminar for district
and appellate judges, June 14-19, at
the School of Law (Boalt Hall) of the
University of California at Berkeley.
Like the Center's 1986 summer pro-
gram, also held at Berkeley, the
1987 seminar will treat selected con-
stitutional questions on the federal
court dockets in the 1980s. In light
of the constitutional bicentennial
celebration, special attention will be
given to historical origins and evo-
lution of constitutional doctrine.

District and appellate judges
wishing to attend the seminar
should write to Russell Wheeler,
Director of the Center's Division of
Special Educational Services. To en-
sure consideration, letters should
be received by Feb. 9.

It certainly is beneficial to the Ad-
ministrative Conference to have liai-
son representation from the Judicial
Conference. For one thing, the Ad-
ministrative Conference is statutorily
empowered to make recommenda-
tions to the Judicial Conference on

'Marshall J. Breger

matters of judicial review. So, we are
delighted that the federal judiciary
has traditionally had a lively interest
in Conference activities. The late
Judge E. Barrett Pretty man chaired
the 1962 Temporary Conference and
was probably the moving spirit be-
hind the creation of the Conference
as a permanent body. The late Judge
Harold Leventhal served with great
effectiveness as liaison member.
Judge Breyer and Judge McGowan,
the present liaison members, are
both recognized experts in admin-
istrative law and take their liaison du-
ties very seriously. Judge McGowan,
in fact, devoted an excellent lecture
to the work of the Conference.

It is important for us to have this
kind of participation from the judici-
ary because what we do, at least
what we recommend, may directly
affect the judiciary. If we recommend
that a certain administrative action
See BREGER, page 4

Chief Justice Appoints
Noel J. Augustyn
Administrative Ass't

The Chief Justice has appointed
Noel J. Augustyn as his administra-
tive assistant, effective Jan. 5, 1987.
Mr. Augustyn
has since 1983
been associate
executive direc-
tor of the As-
sociation of
American Law
Schools. He is a
graduate of
Dartmouth Col-
lege (A.B.),
Stanford Uni-
versity (M. A.), Noel Augustyn
and the University of Notre Dame
Law School (J.D.). He has been an
adjunct professor at Georgetown
vtilfiiversity Law Center since 1985,
was assistant dean and assistant pro-
%ssoT at Boston College Law School
from 1980 to 1983, and from 1974 to
1980 practiced law with two Massa-
chusetts-based firms. His articles on
criminal law, evidence, and other
subjects have been published in
various legal periodicals.

The position of administrative
assistant to the Chief Justice was cre-
ated by Congress in 1972, and is cod-
ified at 28 U.S.C. § 677. ■

Inside . . .

Chief Justice Names
Committee Chairmen 2

New Guidelines on

Intercircuit Assignment

Of Judges Approved 2

Brookings Institution

Holds Colloquium 3

Frank Wagner Named

New Sup. Ct. Reporter

Of Decisions 3

2 0

THE

BRANCH

Three Judicial Conference Committee Chairmen,
New Committee Appointed by Chief Justice

Chief Justice Rehnquist has named
three new Judicial Conference com-
mittee chairmen and has appointed
an ad hoc committee to review and
evaluate the work of the Conference
and the adequacy of its current com-
mittee structure.

Judge Morey L. Sear (E.D. La.),
who had been chairman of the Ad-

Hearing Set on Proposed
Fed. R. Crim. P. 12.3

The Judicial Conference Commit-
tee on Rules of Practice and Pro-
cedure has circulated a preliminary
draft of a proposed Fed. R. Crim. P.
12.3, which would require a defen-
dant to give notice of an intent to
raise a public authority defense. A
hearing on the rule will be held Feb.
13 at 9:00 a.m. at the National Courts
Building in Washington, D.C. Those
wishing to testify should contact the
Committee's secretary, James E.
Macklin, Jr., 30 days before the hear-
ing by writing the Committee on
Rules of Practice and Procedure of
the Judicial Conference of the United
States, Administrative Office of the
U.S. Courts, Washington, DC 20544.
Those with comments or suggestions
should submit them to the same ad-
dress by Mar. 30. ■

THETHIRD BRANCH

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.

Co-editors

visory Committee on Bankruptcy
Rules, is the new chairman of the
Conference's Committee on the Ad-
ministration of the Bankruptcy Sys-
tem. District Judge Lloyd D. George
(D. Nev.), who in 1979 became the
first bankruptcy judge to serve on the
Center's Board, has been selected to
succeed Judge Sear as chairman of
the Advisory Committee on Bank-
ruptcy Rules.

Judge Joseph F. Weis, Jr. (3rd Cir.),
a member of the Conference's Ad-
visory Committee on Civil Rules, has
been named chairman of that com-
mittee.

The Judicial Conference authorized
the Chief Justice to appoint the ad
hoc committee to take a fresh look at
the way in which the Conference op-
erates and to evaluate the adequacy
of the Conference's committee struc-
ture. The Chief Justice noted that the
last time such a committee sat was in
1968, and that it was time for another
look at the subject. A similar review
of the Conference's committee struc-
ture was also performed in 1955. ■

January 1787: Finding how to pay the iir
mense War debt plagued the countr
long after Yorktown and presaged th
struggle over the Constitution. Congress
dependent on voluntary contribution
from the states, wanted a change in th
Articles of Confederahon to let it collect
5 percent impost on imported goods
Unanimous consent of the states was n€
cessary, and by January, all had agreei
but New York, where Governor Clinton'
supporters controlled the Assembly an(
opposed the increase in national powei
"We are told," argued impost proponer
Alexander Hamilton, "that it is dan
gerous to entrust power anywhere, tha
power is liable to abuse .... Power mus
be granted or a civil society cannot exist
the possibility of abuse is no argumen
against the thing; this possibility is inci
dent to every species of power howeve
placed or modified."

Clinton's forces voted down thi
change without even replying t(
Hamilton. Shortly thereafter, however
enough Clinton supporters sided witl
Hamilton to pass a recommendation tha
Congress endorse the Annapolis Con
vention's call the previous October for i
constitutional convention to be held ii
Philadelphia later that year.

BICENTENNIAl. OF

THE U.S. CONSTITUTIO

Chief Justice Approves New Guidelines
On Intercircuit Assignment of Judges

Intercircuit assignment of senior
judges wiU be permitted more readily
than in the past under new
guidelines recently approved by the
Chief Justice. Under the guidelines, a
circuit that lends active judges may
not borrow from another circuit and a
circuit that borrows active judges
may not lend, except in emergency
situations. However, this "lender/
borrower rule" may now be relaxed
in appropriate cases with respect to
senior judges, provided the chief
judge of the lending circuit is con-
sulted to assure that circuit's needs
are met first.

Among other changes to the

guidelines, a visiting judge may, i
deemed necessary, be accompanie(
by up to two staff members.

Assignment of U.S. judges I
courts in other circuits or to specia
courts is pursuant to statutory au
thority. The Judicial Conference ap
pointed the Committee on Intercii
cuit Assignments to assist and advis
the Chief Justice in making these as
signments. The changes in th
guidelines followed consideration b
the Chief Justice, Judge Thomas A
Flannery (D.D.C.), Chairman of th
Committee on Intercircuit Assign
ments, and L. Ralph Mecham, Direc
tor of the AO. ■

BULLETIN OF THE
FEDERAL COURTS

New Reporter of Decisions
Named at Supreme Court

The Supreme Court of the United
States has selected Frank D.
Wagner as the new reporter of deci-
sions. Wagner is a graduate of Cor-
nell University and Dickinson
School of Law. He has worked in
legal publishing since 1972, when
he joined Lawyers Co-operative
Publishing Co. as an associate edi-
tor. Among other assignments, he
served there as managing editor of
U.S. Supreme Court Reports: Lawyers'
Edition. Wagner joined Research In-
stitute of America, a subsidiary of
Lawyers Co-op, in 1982 as a senior
editor, before becoming managing
editor in 1985.

Brookings Institution Colloquium Examines
Relationship Between Judiciary and Congress

State-Federal Judicial
Councils Active in
Minn., Ore., W. Va.

State-federal judicial council meet-
ings w^ere recently held in Minnesota
and Oregon, and the judiciary in
West Virginia have met to reorganize
their council.

Eight U.S. district court judges
joined Chief Justice Douglas K. Am-
dahl and six other members of the
Minnesota Supreme Court in St. Paul
for the first meeting of that state's
state-federal council in two years. At
the time of the meeting, the U.S. dis-
trict court for Minnesota was study-
ing the Minnesota State Rules of Pro-
fessional Conduct. The district court
has now elected to adopt those state
rules, although they will not become
effective in the federal court until af-
ter publication requirements have
been met. The council also discussed
attorney discipline and related sanc-
tions.

Chief Justice Edwin J. Peterson
(Or. Sup. Ct.) chaired the fall 1986
meeting of Oregon's state-federal ju-
dicial council. The council discussed
asbestos cases and the merits of cer-
tifying a statute of limitations ques-
See COUNCILS, page 10

A day-long colloquium at the
Brookings Institution in November,
under the cosponsorship of the Judi-
cial Conference Committee on the Ju-
dicial Branch, was described by its
organizers as the first attempt to ana-
lyze systematically and to improve
the relationship between the judicial
and congressional branches.

Judge Frank M. Coffin (1st Cir.),
chairman of the Committee on the Ju-
dicial Branch, has directed the effort
to study and improve congressional-
judicial relations. Last year, in an ar-
ticle in the Brookings Review, Judge
Coffin wrote that the interrelation be-
tween Congress and the judiciary has
been largely unexplored, and that the
condition of the relationship, "if not
an acute crisis, is that of a chronic,
debilitating fever."

In his introductory remarks at the
conference. Judge Coffin said he
hoped the session would remove
misperceptions about Congress and
the judiciary and begin an agenda for
practical implementation of measures
to improve the relationship between
the branches.

Judge Coffin's observations about
congressional-judicial relations were
confirmed by most of the conference
participants. Judge Abner J. Mikva

(D.C. Cir.) said, "It is apparent that
each group is totally unaware of the
internal processes of the other."
Judge Mikva, like Judge Coffin, is a
former member of Congress.

Much of the discussion focused on
the impact that legislation has on the
work of the courts and on the role of
the judiciary in giving meaning to the
law. This prompted a lively exchange
between Justice Antonin Scalia and
Judge Stephen Breyer (1st Cir.) on
the value of legislative history in in-
terpreting ambiguously worded stat-
utes.

A. Leo Levin, FJC Director, chaired
a panel on judicial and legislative ca-
pacity that included Justice Scalia,
Judge Breyer, and Rep. Robert W.
Kastenmeier, who heads the House
subcommittee that has jurisdiction
over the federal courts. L. Ralph
Mecham, AO Director, was a mem-
ber of a panel chaired by Judge Coffin
that discussed improvements in con-
gressional-judicial relations, and that
also included Emory M. Sneeden, a
former Fourth Circuit judge. Judge
Mikva, Judge Kenneth Starr (D.C.
Cir.), and Judge Irving Hill (CD.
Cal.) were members of the panel on
constitutional and prudential con-
cerns. ■

Bicentennial Commission Extended Through
1991; Other Groups Continue To Plan Projects

The 99th Congress has extended
the life of the Commission on the Bi-
centennial of the United States Con-
stitution so that it can coordinate the
celebration of the 200th anniversary
of the writing and ratification of the
Bill of Rights in 1991. The commis-
sion had originally been empowered
to act through 1989, but its life has
been extended through Dec. 31,
1991.

The commission has approved a
mechanism for providing $3.7 million

in funding for material and instruc-
tion on the Constitution for elemen-
tary and secondary teachers, and has
approved the expenditure of
$250,000 for the publication and dis-
tribution of nearly 2.5 million pocket-
sized Constitutions.

Other bicentennial activities in-
clude the following:

• Chief Judge Howard T. Markey,
Chairman of the Judicial Conference

See BICENTENNIAL, page 10

4jl

THETHiroBFANCH

BREGER, from page 1

should be reviewable under a par-
ticular standard, we need the per-
spective of judges who would have
the reviewing responsibility. Many
practical issues could easily be ig-
nored were the judiciary not there to
put them in focus for us. Of course,
this is a "one-way liaison." We don't
have a complementary liaison with
the Judicial Conference to let them
know how what they do will affect
the agencies. I sometimes think the
judges, when they want to get rid of
litigation in the federal courts, aren't
always aware that they may be push-
ing it onto the agencies and building
up agency adjudicative caseloads.
But Judges Breyer and McGowan
have been very, very helpful.

I should mention that we have de-
veloped a formal relationship with
two more judges. Judge Stanley
Sporkin of the District of Columbia
and Judge John Walker of the South-
ern District of New York have both
become special counsel to the Ad-
ministrative Conference, and they
will be helping us in developing pro-
jects in one of our "theme areas," the

ERSONNEL

Appointments

Alex T. Howard, Jr., U.S. District Judge,

S.D. Ala., Oct. 21
James R. Spencer, U.S. District Judge,

E.D. Va., Oct. 27
Daniel A. Manion, U.S. Circuit Judge, 7th

Cir., Oct. 29
Douglas H. Ginsburg, U.S. Circuit Judge,

D.C. Cir., Nov. 10

Elevations

John J. Gibbons, Chief Judge, 3rd Cir.,

Jan. 1
Edward C. Reed, Jr., Chief Judge, D.

Nev., Oct. 10

Resignation

Arlin M. Adams, U.S. Circuit Judge, 3rd
Cir., Jan. 2

Senior Status

Ruggero j. Aldisert, Chief Judge, 3rd
Cir., Dec. 31

regulation of banking and other fi-
nancial services.

What is your budget at the Admin-
istrative Conference? How many em-
ployees do you have?

Our fiscal 1987 budget is about $1.5
milhon. We have 20 employees, in-
cluding 9 attorneys.

Is that adequate?

I suppose I would not be a proper
agency chairman if I didn't say that
we could always use more but, at the
same time, I would not be doing my
job if I did not say that we are man-
aging well with what we have.

I think to some extent the kinds of
activities that we do are dependent
upon our budget. We have in the
past done extensive full-scale studies
of IRS procedures — seven big vol-
umes. These took up the time of
much of the office personnel.

When were these studies done?

This was in the mid seventies.
Congress requested that we do them,
and the IRS changed innumerable
procedures as a result. Some say that
we should do another IRS study, but
I leave that to Congress. We did a
major empirical study of the FTC's
rulemaking procedure. Empirical
studies take vast resources. If you
don't have those resources, you have
to shy away from empirical research.

Let me emphasize that in addition
to the permanent staff of the Con-
ference we hire numerous contract
researchers. At any time we have ap-
proximately 30 consultants under
contract. A large number of the best
academics in administrative law have
at one time or another been consul-
tants for us. They do the bulk of the
empirical studies that result in Con-
ference recommendations. Indeed,
most of the work on the IRS and FTC
projects was performed under such
contracts.

Our consultants are usually pro-
fessors, but on occasion we hire at-
torneys in private practice who have
specialized skills.

We have begun — and with some
success — to get pro bono assistance
from law firms. We have just com-
pleted a very successful project that

was performed for us by Crowell &
Moring, a very large Washington,
D.C, firm. I am trying to point out to
people that the federal government
can be an object of charity.

Of course, we have the Conference
itself, which is an unusual entity: a
council of 10 appointed by the Presi-
dent. James C. Miller, head of OMB,
is on it; Arnold Burns, Deputy At-
torney General, from the Justice De-
partment; Dan Oliver, Chairman of
the Federal Trade Commission; Mark
Fowler, Chairman of the Federal
Communications Commission; a con-
ference with 44 government mem-
bers (usually the general counsel or
agency head) and some 36 members
from the public; and liaison mem-
bers, including liaison members from
the FJC and the AO.

Please give us an update on pro-
posals for setting rules on govern-
ment agencies' hiring outside coun-
sel.

This is an ongoing study. We hope
to have a recommendation ready for
the June plenary session. The bank-
ing agencies, in particular, make ex-
tensive use of private counsel. The
See BREGER, page 5

ALENDAR

Jan. 15-16 Judicial Conference Commit-
tee on the Administration of the
Bankruptcy System

Jan. 19-20 Judicial Conference Commit-
tee on Judicial Ethics

Jan. 20-22 Workshop for Judges of the
Ninth Circuit

Jan. 22-23 Judicial Conference Commit-
tee on Court Administration

Jan. 22-24 Judicial Conference Commit-
tee to Implement the Criminal Jus-
tice Act

Jan. 26 Judicial Conference Ad Hoc
Committee on Sentencing
Guidelines

Jan. 28-30 Judicial Conference Advisory
Committee on Codes of Conduct

Jan. 29 Judicial Conference Committee
on Rules of Prachce and Procedure

Jan. 30-31 Judicial Conference Commit-
tee on the Budget

BREGER, from page 4

FDIC spends over $30 million a year
hiring private attorneys; the Federal
Home Loan Bank Board dose to that.
They have a unique set of problems
in terms of their needs for private
counsel, because those needs occur
in crisis situations when there is a
failing bank. They have developed
procedures to give some regularity to
their decision making. Most agencies
other than the banking agencies op-
erate on an ad hoc basis. We think
that it is important that there be an
effort to develop some regularity and
guidelines in this area.

Do you think the Conference will
accept that recommendation?

Well, I have not been Chairman
long, but I have been Chairman long
enough not to second-guess the
members of the Conference.

Do you anticipate objections from
agencies that have been using out-
side counsel?

We have found that many agencies
did not realize that sister agencies
had the same kinds of problems. This

Positions Available

U.S. Bankruptcy Judges. New posi-
tions in D. Md., E.D. Va., W.D.N. C,
D.S.C.; existing positions in E.D. Va.,
M.D.N.C. Note: Appointments cannot
be made to new positions until funds
are appropriated by Congress. Appli-
cants must complete comprehensive
questiorvnaire. Apply by Jan. 16 to Sam-
uel W. Phillips, Circuit Executive, U.S.
Court of Appeals, 4th Circuit, P.O. Box
6G, Richmond, VA 23214.

U.S. Bankruptcy Judges. E.D. La.,
W.D. La., N.D. Tex., W.D. Tex., S.D.
Tex. (Houston, 3 positions; Corpus
Christi, 1 position). Salary $70,500. Re-
quires law degree and requisite charac-
ter, experience, and ability. For
qualification standards and application
form, write Lydia Comberrel, Circuit
Executive, U.S. Court of Appeals, 5th
Circuit, 600 Camp St., New Orleans, LA
70130. Cut-off for completed apphca-
tions is Feb. 18.

EQUAL OPPORTUNITY
EMPLOYERS

is a situation in which State thought
they alone were doing it. Agriculture
thought the same. Except for the
banking agencies, everyone thought
that these were issues unique to
them. So there was a sense of reUef
upon learning that this is being done
throughout the government, and a
great desire for some regularity in ap-
proaching the hiring of outside coun-
sel.

I think that by and large agencies
welcome suggestions for improve-
ment that are based on successful ex-
perience in other agencies, so I don't
think they will resent our addressing
the issue, but it is too early to say
whether they will accept particular
recommendations.

There are some issues that involve
important policy questions. Should
the hiring, to the extent that it is re-
quired, be done by the agencies
themselves, or should the decision to
hire outside counsel be approved by
the Department of Justice?

You have said that "the develop-
ment of both case law and legal cul-
ture has eroded the consensus which
undergirded many portions" of the
1946 APA. Would you enlarge on
that?

The APA was in large measure a
product of a New Deal view of reg-
ulation as an apolitical enterprise.
The view was that in the agencies
there are experts and that they can
solve problems with technical exper-
tise. That view has begun to erode.
The erosion can be seen very clearly
in fights in the Carter administrahon
over the Omnibus Regulatory Re-
form bill, which started out as pro-
cedural reforms, good-government
reforms. Then different interest
groups started to say, "Well, these
good-government reforms will gore
my ox"; "I had better oppose section
14"; "I had better oppose section 17";
and this good-government effort just
collapsed. It was dead in the water,
because the notion that these admin-
istrative agencies were just supplying
expertise and not making political
choices has eroded.

See BREGER, page 6

NEWS

FROM

THE

BULLETIN OF THE
FEDERAL COURTS

Series of Regional
Hearings Completed

Judicial representatives from five
judicial circuits were among the more
than 30 witnesses who testified be-
fore the U.S. Sentencing Commission
in Washington last month. That two-
day session was the last in a series of
regional hearings that followed the
publication of the Commission's pre-
liminary draft sentencing guidelines
on Oct. 1, 1986. Previous hearings
were held in Chicago, New York
City, Atlanta, Denver, and San Fran-
cisco. In all, the commission has re-
ceived oral and written commentary

Sentencing
Commission

from hundreds of individuals and
groups concerning the preliminary
guidelines.

At the conclusion of the hearings.
Sentencing Commission Chairman
William W. Wilkins, Jr., said he was
pleased that the hearings had accom-
plished their objective. "The pre-
liminary draft and regional hearings
focused attention on the many diffi-
cult issues the commission must face
as it seeks to develop theoretically
sound and workable guidelines,"
Judge Wilkins said. "I am encour-
aged by the strong support and also
the constructive criticism offered by
those interested in improving our
criminal justice system."

The commission will consider the
commentary received in preparing a
redraft of the sentencing guidelines
for publication in late January, on
which it will again solicit public com-
ment. As was the case with the pre-
liminary draft, copies will be sent to
every Article III judge, U.S. magis-
trate, U.S. attorney, chief U.S. proba-
tion officer (with several copies to
each probation office), federal public
defender, and hundreds of defense
attorneys and interested organiza-
tions and individuals who received
the first draft. ■

6 ^

iheTH

BREGER, from page 5

BRANCH

Secondly, there is now, unlike in
1946, a great deal of uncertainty
about the desirability of regulation it-
self. During the New Deal, during
World War II, the regulatory state
was a "given"; in fact, it was a given
good; it was always a good. Got a
problem? Regulate it. What the
Reagan administration has done is
lay that basic question — that bottom-
line, threshold question — open to re-
examination. And clearly most of us
would now agree that it is less than
100 percent certain that regulation is
always an unmitigated good.

Thirdly, the APA, the whole reg-
ulatory apparatus of 1946, was
largely an adjudication apparatus, an
enterprise to dispose of particular
matters under general guidelines laid
down by the legislative branch. What
we have seen over the last 40 years is
the growth of regulation through
rulemaking, of policy making
through rulemaking, and this growth
in rulemaking really reflects a de-
volvement of policy-making power to
agencies in the regulatory state — a
very different problem from the 1946
paradigm, within which you added
to agency size and responsibility to
enlarge the ambit for adjudication.

The Administrative Conference's
Committee on Administration re-
cently issued a proposed recommen-
dation on agencies' use of alternative
dispute resolution techniques.
Would you comment on this pro-
posal?

Well, Recommendation 86-3 is one
we are very excited about, and it is a
major theme of the Conference. We
think that there is really ferment in
the area of ADR. In recent years most
of that ferment has been in the judici-
ary. Indeed, if you look at FJC pub-
lications you can track a lot of the ex-
perimentation that has been going
on: in arbitration, in minitrials, in pi-
lot mediation programs. Hardly any-
thing has happened in the agencies.
The agencies — and I always feel em-
barrassed saying this to the judges —
the agencies must have 20 to 50 times

the number of adjudications that the
court system does. And there are so
many more "judges" — administra-
tive law judges, hearing examiners —
so if you can have ADR in the agen-
cies you have accomplished tremen-
dous efficiency, tremendous savings
of time and energy, and more justice
(because I believe that delay in and of
itself is a reduction in justice). So we
are pushing this very hard.

Marshall }. Breger

We are going to have a major con-
ference in the spring on ADR at the
agency level. We have some projects
that we discussed at our plenary ses-
sions in June and December 1986.
Some of these projects, in fact, dis-
cuss whether or not current statutes
or procedures will have to be modi-
fied. We are going to look at whether
there is a need for change in the
Federal Advisory Committee Act. For
example, when you want to have a
regulatory negotiation on rulemak-
ing, is the caucusing that often occurs
in those meetings always required to
be open to the public under FACA?
We don't think it is, but a lot of agen-
cies are afraid. If they really are so af-
raid, would a change in the statute
encourage them to experiment with
regulatory negotiation?

We are considering the problem of
the power of an agency to use a pri-
vate arbitrator, and we have just is-
sued some suggestions as to how
agencies can go about acquiring the
services of such "neutrals." We are
looking at the question of settlement.

the Comptroller General's rules re-
garding settlement authority, the fact
that settlements have to be approved
by the Department of Justice. That af-
fects the settlement process. We are
pushing both the alternate dispute
resolution area and what we call
"regulatory negotiation," which is a
form of ADR, an effort to bring par-
ties together in a negotiation before a
regulation is issued in a rulemaking,
in the hope that this will prevent liti-
gation afterwards. And since 90 per-
cent of the EPA regulations, for ex-
ample, end up in court, if you can get
a consensus beforehand you have
prevented a tremendous waste of ev-
eryone's time and energy and
money.

Where does the proposal for an in-
dependent agency to hear Freedom
of Information Act disputes stand?

The Judicial Review Committee of
the Administrative Conference did
not agree with the proposed recom-
mendation and sent it back to the
consultant for this reason: There are
5,000 agency denials of FOIA re-
quests a year; only 500 go to courts.
There is no point in setting up an in-
dependent tribunal for 500 cases.
What the committee did want to ex-
plore is whether or not the ombuds-
man notion for FOIA problems —
which exists in New York State, in
Australia, in New Zealand, and in
Canada — would be useful in cutting
down on the time of the FOIA case,
preventing litigation, and that is
what I am exploring.

Has the Administrative Con-
ference taken a stand on the value of
the Equal Access to Justice Act?

Yes. We were directed by Congress
to consult with agencies on imple-
mentation of the EAJA and to assist
them. We prepare model rules for the
agencies, and we prepare a yearly re-
port on EAJA agency adjudications.
We get hundreds of ad hoc questions
from both the small and large agen-
cies. And we have a kind of substan-
tial presence as an informal guardian
of the EAJA. We consulted with Con-
gress a number of times on the modi-
See BREGER, page 7

BREGER, from page 6

ied act, and we prepared new model
xiles of procedures under the modi-
ied act.

As far as we can see the act has
een all for the good. We have not
een the dangerous effects its oppo-
ents swore would happen. The
eavens have not fallen. The public
sc is not rent (at least not by this act)
nd people or small businesses who
ave law suits with the federal gov-

the Senate. H.R. 439 finally passed
the Senate in the closing days of the
99th Congress. Sen. Charles E.
Grassley (R-Iowa) was very suppor-
tive of it. It passed encumbered by a
number of unrelated amendments
concerning, among other things, ju-
dicial pay. Due to lack of time, the
amended bill never made it to con-
ference. Having reread Aesop's fable
of the tortoise and the hare, I intend
to try again this spring in the 100th
Congress.

"I have been working very hard with Congress to enact
the 'Races to the Courthouse' bill."

rnment — businesses where they
^ere in the right, where the govern-
lent was not substantially justi-
ed — have been recompensed, in-
luding attorney expenses. So we
link the changes are for the good,
[ere I must add a mea culpa: While in
16 White House, I supported the
resident's veto of the proposed
AJA amendments [Breger, How
hould the Equal Access to Justice Act he
ebuilt?, 71 A.B.A. J. 40 (1985)]. The
[nended act as finally passed has
roven most successful, however.
The Administrative Conference
fveral years ago made a recommen-
ation intended to deal with "races
I the courthouse" in cases involving
lultiparty forum shopping for judi-
al review of administrative action,
ut the races continue. Would you
>mment, please?

I have been working very hard
ith Congress to enact the "Races to
le Courthouse" bill, which creates
1 independent body to randomly
^lect the court with venue in such
tuations. We proposed this in 1980,
id it was included in a number of
nnibus regulatory reform bills. For
le reason or another, these bills
?ver became law. In the 98th Con-
ess we worked with the Judicial
Dnference, the ABA, and other in-
rested parties to develop a gener-
ly sahsfactory legislative proposal,
id it was passed by the House as a
parate bill, but it didn't get through

It is important for your readers to
understand what a race to the court-
house is all about. It is a situation
where two adverse law firms can hire
people to wait — to camp out in front
of the clerk's office at a federal court
or at an administrative agency — and
keep open phones to New York and
to New Orleans, for example, for
weeks on end. They hire people at
the other end of the phone booth to
form a human chain in order, hope-
fully, to file an already written appeal
with the clerk of a circuit court that is
more favorable than another circuit

BULLETIN OF THE
FEDERAL COURTS

quiescence policies of all relevant
federal agencies, not only the Social
Security Administration. We hope
that this study will be completed by
the end of 1987.

Does the judiciary sometimes go
too far in reviewing the factual basis
of regulations, particularly in com-
plex scientific areas?

On the narrow point of complex
scientific facts, we don't think there
has been that big a problem. Our
Guide to Federal Agency Rulemaking
points out that, especially when the
subject matter of the rule is a techni-
cal one, judicial second-guessing is
likely to be minimal. And I think that
has been generally the case with
technically complex facts. There is no
doubt that there has been a shift in
the attitude of the federal courts in
the seventies. You had the "hard
look doctrine" developed by Judge
Skelly Wright, and now you have the
Chevron doctrine of the Supreme
Court, faithfully applied in the D.C.
Circuit by Judge Kenneth Starr, for
example, in Investment Co. Inst. v.
Conover, No. 85-5029. Chevron points
out that where the legislative history
is clear, you have to follow the legis-
lative history. Where the legislative
history or the legislative directive

"[Nlegotiated rulemaking can change the face of
rulemaking as you know it today."

court. But tremendous problems de-
velop on the timing, because the Sec-
ond Circuit uses a second hand and
the Fifth Circuit does not. And in an
actual case where both the Second
and Fifth Circuits showed a filing at
3:01 p.m., the circuit court had to
send it back to the agency to figure
out who won the race.

Are you studying the so-called
nonacquiescence problem, where
some agencies refuse to follow one
or more circuits' decisions when ad-
ministering a national program?

This problem of nonacquiescence
is a significant one, and it is one on
which we have commissioned a
study. We will review the nonac-

may be uncertain, the courts should
give deference to the agency. And
the Chevron position, I think, would
make clear that this would not be a
major doctrinal problem.
Do you file amicus briefs?
Some people have suggested that
the Administrative Conference
should file amicus briefs, but we
have never done so up to now. We
may well have the legal power to file
them, but doing so would only rarely
advance our approach to administra-
tive law reform — which is to create
consensus for reform among im-
pacted parties. I think we have seen
our role as patiently building a con-
See BREGER, page 8

iheTB

BRANCH

BREGER, from page 7

sensus among the agencies and
within the executive branch — a con-
sensus that leads to improvements in
agency rules and regulations. We are
often consulted by the Justice Depart-
ment on appeals. The Solicitor Gen-
eral's office consults us on matters
where we have unusual expertise.
And our reports and recommenda-
tions are public and are frequently
cited in briefs and in judicial deci-
sions. So I am not convinced we
should jump into the amicus area un-
less the need is pressing and there is
no one else ready to fulfill that need.

I believe that the Conference can
do better work if it focuses its ener-
gies on particular themes rather than
picking up projects and functions in
an ad hoc manner. I try to gear our
studies around a particular number
of themes, such as dispute resolu-
tion, financial services, problems of
user fees, and government efficiency,
where with a definable amount of
work we will really be the govern-
ment experts in that area.

We also continue our traditional
work in administrative rulemaking,
adjudication, problems of admin-
istrative law judges. In 1964 when
the Administrative Conference Act
was passed, we were faced with the
problem of fleshing out the mearung
of the APA. As our Guide to Federal
Agency Rulemaking shows, we did
some of the major work in informal
rulemaking. We dealt with most of
the major issues concerning agency
adjudication, such as procedure for
discovery, subpoenas, hiring of
ALJs, agency review (see our many
recommendations in 1 C.F.R. pt.
305 (1986)). Since that time, we did
some of the key work in agency
openness as evidenced by FACA, by
FOIA, by the Sunshine Act (see, e.g.,
our 1978 Interpretive Guide to the Gov-
ernment in the Sunshine Act), and we
developed the arguments for citizen
participation in government decision
making. Now you have a whole new
set of issues, such as alternate dis-
pute resolution, which have de-

veloped because of a concern about
litigation overload. There are prob-
lems of government grants and con-
tracts, the enactment of many user
fees, and new substantive areas,
such as financial services that are
using regulations without a coherent
conceptual or structural framework.
So the face of administrative law is
very different, and the issues, I
think, are different and exciting ones.

What changes are needed in
rulemaking?

The Conference has done a lot of
work in this area. We think that the
present APA exemptions that allow
agencies to omit notice and comment
procedures for rules dealing with
public property, loans, grants, bene-
fits, and contracts should be elimi-
nated. Most agencies do provide
notice and comment for such rules,
in large part as the result of our rec-
ommendation. These kinds of rules
were small potatoes in 1946. But with
the growth of entitlement programs,
they are now very big stuff.

We think that agencies often (or at
least sometimes) should use addi-
tional procedures where they con-
sider complicated or particularly im-
portant rules. They should go
beyond notice and comment to ad-
vance notice of proposed rulemak-
ing, longer periods of time for com-
ment, holding public hearings or
conferences. These are just exam-
ples. Again, different agencies have
employed these procedures with
good results. We think agencies
should also develop appropriate pro-
cedures for handling ex parte com-
munications that occur in rulemak-
ing. The gist of such ex parte com-
ments should be placed in the rule-
making record. An agency should
also take care of conflicts of interest
by promulgating procedures by
which decisional officials involved in
rulemaking abstain from participa-
tion if they have a conflict of interest
or if they have prejudged facts that
are in issue. And we think that in ma-
jor rulemakings a regulatory analysis
See BREGER, page 9

Noteworthy

Second Circuit on summary judg
ment. The Second Circuit has en
couraged litigants to use the sum
mary judgment process, taking not(
of a study done by its Committee or
the Pretrial Phase of Civil LitigaHon
chaired by Professor Maurice Rosen
berg. In Knight v. U.S. Fire Ins. Co.
No. 86-7294 (Oct. 22, 1986), Chie
Judge Feinberg wrote that some liti
gants in the circuit were "reluctant tc
make full use of the summary judg
ment process because of a perceptior
that this court is unsympathetic tc
such motions and frequently reverse;
grants of summary judgment. What
ever may have been the accuracy o
this view in years gone by, it is decid
edly inaccurate at the presen
time .... [From the committee's
study] it is evident that grants ol
summary judgment are upheld or
appeal in most cases [in 79 percent o:
the cases studied by the committee]
That figure is comparable to this cir
cult's 84 percent affirmance rate foi
appeals in civil cases generally."

PACT publishes new directory. A

directory of victim-offender recon-
ciliation and mediation programs ir
the U.S., Canada, and England has
again been published by the National
Victim-Offender Reconciliation Re-
source Center, which is a project ol
the PACT Institute of Justice, a non-
profit corrections organization. The
directory lists 47 victim-offender pro-
grams that arrange meetings, in the
presence of trained mediators, be-
tween perpetrators of crimes and
their victims. The directory reports
types of jurisdictions served, most
common offenses referred, funding
and referral sources, number of an-
nual cases, and other program
characteristics. Victim-Offender Recon-
ciliation Program Directory is available,
for $4.60 postpaid, from PACT, Box
177, Michigan City, IN 46360. ■

BULLETIN OF THE ^ItK
FEDERAL COURTS ^i^

BREGER, from page 8
should be prepared. This is a form of
cost-benefit analysis. Agencies
should utihze this analysis as a tool.
You make better rules by integrating
analysis into the rulemaking process
from the very beginning.

Last but not least, negotiated
rulemaking can change the face of
rulemaking as you know it today,
and can be very useful in many situa-
tions. It is being used by the EPA, by
the FAA, the FTC, the Department of
Labor, the Department of the Inte-
rior; all very usefully with the poten-
tial of saving extensive amounts of
time and money in litigation. But let
me emphasize that agencies need a
considerable amount of discretion in
deciding whether to use additional
procedures in any particular rule-
making. We have been in general re-
luctant to urge expansion of across-
the-board statutory procedural re-
quirements for rulemaking.
Any further comment?
I think that it is important, with all
due respect, for the courts to be sen-
sitive to the fact that they are in a
partnership with both the adjudica-
tory and the rulemaking side of the

HE 50URCE

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 mailing label,
preferably franked (but do not send an envelope),
ind addressed to Federal judicial Center,
Information Services, 1520 H Street, N.W.,
Washington, DC 20005.

Abramson, Leslie W. fudicial Dis-
qualification Under Canon 3C of the Code of
hdicial Conduct. American Judicature So-
:iety, 1986.

Childress, Steven Alan. '"Clearly Er-
roneous': Judicial Review Over District
udges in the Eighth Circuit and
3eyond." 51 Missouri L. Rev. 93 (1986).

Federal Court Management Statistics —
1986. Administrative Office of the U.S.
~ourts, 1986.

Federal Offenders in the United States

agency activity. I think that the judi-
ciary should become involved in the
concerns of the administrative agen-
cies, because so much of what hap-
pens there will affect the contours of
the federal judiciary in the future. It
is my understanding that Social Se-
curity disability cases comprise 30
percent of the caseload in many dis-
tricts. Now that fact alone should

"[I]t is important ... for
the courts to [realize] that
they are in a partnership
with both the
adjudicatory and the
rulemaking side of the
agency activity."

focus the judiciary on the importance
of understanding and discussing and
working in a systemic way toward
dealing with problems of agency ad-
judication mechanisms.

The presence of Judges Breyer and
McGowan has been very helpful to
the work of the Conference. We look
forward to further interaction with

the judiciary— with the Judicial Con-
ference, with the FJC, and with cir-
cuit judicial conferences where ad-
ministrative law issues impact on
caseload.

Judicial review of agency rulemak-
ing is significantly affected by the
agency rulemaking process. Judicial
interest in improving that process
could well reduce litigation or at least
streamline the issues that are liti-
gated. Courts should recognize the
need to articulate their positions on
rulemaking clearly and in ways that
are sensitive to agency decisional
processes. They should support
efforts, such as "reg-neg," to reduce
the number of final rules that are liti-
gated. Improvements in the law have
to include the law in action, and the
rulemaking and adjudicatory ac-
tivities of administrative agencies
very often embody the law in ac-
tion— the underside of the legal ice-
berg, one might say. In short, any
effort the judiciary makes to learn
more about these beasts whose rules
they review and whose adjudications
they oversee will do much to im-
prove the administration of justice
for both agencies and courts. ■

Courts~1984. Administrative Office of
the U.S. Courts, 1986.

Goettel, Gerard L. "From the Bench:
Appellate Fact Finding— And Other
Atrocities." 13 Litigation 7 (Fall 1986).

Goldberg, Arthur J. "The Free Exercise
of Religion." 20 Akron L. Rev. 1 (1986).

Hale, Emmette F., III. "The 'Arising
Under' Jurisdiction of the Federal Circuit:
An Opportunity for Uniformity in Patent
Law." 14 Florida State University L. Rev.
229 (1986).

Hufstedler, Shirley M. "Bad Recipes
for Good Cooks— Indigestible Reforms of
the Judiciary." 27 Arizona L. Rev. 785
(1985).

Hupp, Harry L. "From the Bench: Ten
Ways to Torpedo a Settlement Con-
ference." 12 Litigation 7 (Summer 1986)

Levine, Murray. "The Role of Special

Master in Institutional Reform Litigation:

A Case Study." 8 Law & Polio/ 275 (1986).

Meador, Daniel J. "Federal Law in

State Supreme Courts." 3 Constitutional

Commentary 347 (1986).

Mikva, Abner J. "Reading and Writing
Statutes." 28 South Texas L. Rev. 181
(1986).

O'Connor, Sandra D. "The Changing
Role of the Circuit Justice." 17 University
of Toledo L. Rev. 521 (1986).

Packel, Israel. "Congressional Power to
Reduce Personal Jurisdiction Litigation."
59 Temple L.Q. 919 (1986).

Starr, Kenneth W. "The Shifting Pan-
orama of Attorneys' Fees Awards: The
Expansion of Fee Recoveries in Federal
Court." 28 South Texas L. Rev. 189 (1986).

Steinberg, Robert E. "OMB Review of
Environmental Regulations: Limitations
on the Courts and Congress." 4 Yale Law
& Policy Rev. 404 (1986).

Thompson, Robert S. "Judicial Inde-
pendence, Judicial Accountability, Judi-
cial Elections, and the California Supreme
Court: Defining the Terms of the De-
bate." 59 Southern California L. Rev. 809
(1986).

10 HL**- .

theTHIRDbeanch

BICENTENNIAL, from page 3

Committee on the Bicentennial of the
Constitution, reports that the com-
mittee will be updating the film series
Equal Justice Under Law and plans to
make videocassettes available to all
courts. Committee members will
judge a law-school essay contest con-
ducted by the national commission.
While a number of other projects are
under consideration, the committee
sees its primary role as catalyst and
information exchange center for dis-
trict and circuit court committees.

• Phi Alpha Delta Law Fraternity,
International, has begun a six-year
bicentennial program that empha-
sizes outreach to communities to ed-
ucate citizens about the Constitution.
The program organizes intergenera-
tional discussion groups on the Na-
tional Council on the Aging's pub-
lication The Family, the Courts and the
Constitution.

• The ABA and the Constitution
Study Group of the National Ar-

chives have published a collection of
essays about the Constitution. The
Blessings of Liberty: Bicentennial Lec-
tures at the National Archives includes
lectures by prominent constitutional
scholars and public figures given as
part of the Archives' "Bicentennial
'87" lecture series. The volume is in-
tended as a resource for persons
planning bicentennial programs, and
is available from Order Fulfillment-
468, ABA, 750 N. Lake Shore Dr.,
Chicago, IL 60611, for $4.95 plus
$1.00 handling; for multiple copy
orders, send $2.50 handling charge.
Specify Prod. Code No. 468-0005.

• A National Center for the U.S.
Constitution, devoted to scholarly
study and public education concern-
ing the Constitution, will be estab-
lished in Philadelphia. A planning
committee is headed by Hobart G.
Cawood, superintendent of Indepen-
dence National Historical Park and
the director of Philadelphia's bicen-
tennial observance. ■

COUNCILS, from page 3

tion to the Oregon Supreme Court.
Chief Justice Peterson reported on ju-
dicial immunity. Council members
agreed jointly to support proposals in
Congress to strengthen judicial im-
munity, particularly in the area of at-
torneys' fees in injunction suits.
Judge James Burns (D. Or.) asked
that the council keep in mind recent
filings by disgruntled litigants seek-
ing recusals.

West Virginia plans to organize a
new state-federal council and will
soon hold regularly scheduled meet-
ings. Conflicts in court calendaring —
a problem for both the courts and the
bar — will receive early attention.
Judges and attorneys see calendaring
guidelines — now in draft form — as a
solution. For further information
about or copies of guidelines for cal-
endaring, contact Alice O'Donnell,
FTS 633-6359, 1520 H Street, N.W.,
Washington, DC 20005. ■

BULLETIN OF THE FEDERAL COURTS

theTHIRDbkanch

First
Class
Mail

VoL 19 No. 1 January 1987

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

Official Business

Postage and

fees paid

United States

Courts

U.S. GOVERNMENT PRINTING OFFICE 1987-491-221-40009

03b:

BULLETIN OF THE FEDERAL COURTS

RDbkanch

President's Decision on Salary Increases

Falls Short of Commission's Recommendations

President Reagan has recom-
mended increases in salaries for judi-
cial personnel, although his recom-
mendations do not match the
increases recommended by the Com-
mission on Executive, Legislative,
and Judicial Salaries (see the table on
page 4). The President's recommen-
dations will take effect absent con-
trary action by Congress within 30
days. Under those recommenda-
tions, district judges will receive an
annual salary of $89,500, circuit
judges $95,000, claims court judges
582,500, and bankruptcy judges,
magistrates, and Level V executives
S72,500. The commission had recom-
mended salaries of $130,000 and
5135,000 for district and circuit

judges, respectively. The President
stated in submitting his recommen-
dations, "This increase is but the first
step in addressing the loss of real in-
come documented by the . . . Com-
mission," and that he anticipates
submitting another salary recom-
mendation prior to leaving office that
would be "another step toward over-
coming that erosion of real income."
The salary commission made rec-
ommendations Dec. 15 concerning
the compensation of more than 3,000
government positions, including the
Vice President, cabinet officers,
members of Congress, Supreme
Court justices, and federal judges.
"Since 1969, incumbents in these
See SALARIES, page 4

Abraham Sofaer, Former
On the Role of State Dep

Abraham D. Sofaer received his B.A.
and an LL.D. degree from Yeshiva Uni-
versity and his LL.B. from New York
University. He clerked for Judge Skelly
Wright (D.C. Cir.) and for Justice
William /. Brennan, Jr., and served as an
Ksistant U.S. attorney for the Southern
District of New York (1967-69). He
aught law at Columbia University from
'969 to 1979, and was appointed to the
IS. District Court for the Southern Dis-
rict of New York in 1979. He served on
he Federal Judicial Center Advisory
^-ommittee on Experimentation in the
^w. In 1985 he became Legal Adviser to
he State Department.

You served as a judge for six years
•efore taking your present position,
low would you compare the two
obs?

I think when you leave the bench
ou can understand the enormous
alue of having a place where you
an have disputes authoritatively re-
olved. In diplomacy you don't have

Prosecutor and Judge, ,^
artment Legal Advisex^ , ^ '^

v61uMi'l9
NUMBER 2
FEBRUARY 1987

Chief Justice

Lends Support to ^:^

Salary Increases ^ ^^

The Chief Justice utilized h1i)^ar
end statement, released Jan. 1, to un-
derscore his strong support for the
recommendations of the Commission
on Executive, Legislative, and Judi-
cial Salaries. The statement said in
part, "The pay of federal judges has
never been comparable to the earn-
ings of lawyers at the top of their pro-
fession in private practice, and the
recommendations of the Salary Com-
mission do not approach those fig-
ures. The Commission's recommen-
dation would simply restore to
federal judges the sort of earnings
which have always made that office
attractive to those who combine a de-
sire for public service with an interest
in the judicial process." The Chief
Justice cited a statement of Circuit
^^iicige Frank M. Coffin (1st Cir.), who
hgi^ said that "what no judge ap-
,^\^Ointed to the bench in the past two
decades has ever expected to bear
was an almost 40 percent reduction
in his or her real compensation over
the past 18 years."

The Chief Justice pointed out that
"sitting judges' inevitable loss of mo-
rale, their increasing preoccupation
with possible congressional rectifica-
tion, and the possibility that lawyers
will come to see federal judicial serv-
ice not as a calling but as a stepping
stone to a lucrative private practice all
threaten the traditions of our inde-
See CHIEF JUSTICE, page 5

such a place. It is more difficult. You
have to negotiate things out, and
there are very few places where you
can go for an authoritative resolu-
tion. We don't agree, for example,
that the International Court of Justice
See SOFAER, page 6

Inside . . .

Questions Raised on

Administration of

Vaccine Injury Act p. 2

Sentencing Commission

Revises Guidelines,

Seeks Comments p. 5

THElHIEDHiANCH

200

******

February 1787: With the country
near bankruptcy. Shays' s Rebellion
ravaging New England, and Con-
gress unable to act, many agreed
that some change in the national
government was necessary but few
agreed about how much.

The five-state commercial con-
vention that had met in September
1786 in Annapolis had suggested
that the states appoint delegates to
meet in Philadelphia in May 1787
"to devise such further provisions
as shall appear . . . necessary to ren-
der . . . the federal government ade-
quate to the exigencies of the
Union." On Feb. 21, Congress of-
fered its opinion that such a meet-
ing would be "expedient" but only
"for the sole and express purpose
of revising the Articles of Con-
federation."

That same day. Secretary of For-
eign Affairs John Jay wrote John
Adams that he expected little from
the proposed convention. He knew
the government "was unequal to
the task assigned to it" but was un-
sure what changes were necessary.
"There is one, however, which I
think would be much for the better,
viz., to distribute the federal sov-
ereignty into its proper depart-
ments of Executive, Legislative,
and Judicial; for that the Congress
should act in these different capaci-
ties was, I think, a great mistake in
our policy."

BICENTBNNIAI. OF

THETHIRD BRANCH

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.

Co-editors

Vaccine Injury Act of 1986, Still Unfunded,
May Be Subject of Congressional Scrutiny

A program to provide compensa-
tion in cases of injury caused by vac-
cinations against certain childhood
diseases is being studied with an eye
toward substantial changes. Due to
controversy over some provisions of
the program — including the role the
judiciary would have in administer-
ing it — the 100th Congress may
amend the program in the course of
enacting an excise tax to provide
funding for it. Funding from a source
other than general revenue is neces-
sary for the program to become oper-
ational.

Judicial Conference comrruttees are
considering appropriate recommen-
dations concerning the program,
which was established by the Na-
tional Childhood Vaccine Injury Act
of 1986 and signed into law on Nov.
14 as title III of the omnibus health
bill (S. 1744). President Reagan said
at the time of signing that a "serious
deficiency of title III is that it would
create a program administered not by
the Executive Branch, but by the
Federal judiciary. This is an unprece-
dented arrangement that represents

a poor choice to ensure a well-man-
aged and effective program."

Under the program, a claim for
compensation would be made by fil-
ing a petition with the U.S. district
court for the district in which the pe-
titioner resides or in which the injury
or death occurred. A copy of the peti-
tion would be served upon the Secre-
tary of Health and Human Services.
The role of the executive branch in
the compensation program is limited
to that of "respondent" to such peti-
tions.

Actual administration of the com-
pensation program would be han-
dled by the courts according to the
detailed regulation of court proceed-
ings contained in the act. For exam-
ple, the act requires the appointment
of a special master in every compen-
sation case. The special master would
take evidence and prepare proposed
findings of fact and conclusions of
law with respect to whether compen-
sation is to be provided and the
amount of any such compensation.
The record is then subject to review
See COMPENSATION, page 10

Smithsonian Symposium to
Origins, Interpretation, and

Constitutional Roots, Rights, and Re-
sponsibilities, the Ninth International
Symposium by the Smithsonian In-
stitution, is scheduled for May 18-23,
1987. The symposium will be chaired
by A. E. Dick Howard, professor of
law at the University of Virginia
School of Law.

The symposium will open in
Charlottesville, Va. The first day's
program will feature sessions on the
idea of a written constitution from
historical and interpretive perspec-
tives, including such topics as the
idea of a written constitution in the
thought of the American Founders,
change under written constitutions,
and judicial review. Participants will
travel to Washington, D.C., for the
remainder of the symposium.

The second day's program will ex-

Examine Constitution's
Impact Abroad

amine the Old World and New
World roots of American constitu-
tionalism. Speakers from England,
Scotland, and Germany, as well as
American academicians and practi-
tioners, are scheduled to give presen-
tations.

The third day's program will be on
the sources and evolution of rights
and on their implementation and
efficacy. A reception at the White
House is planned.

The fourth day will be devoted to
citizenship and citizen education and
participation. The closing session oi
the symposium will be on the U.S.
Constitution's impact abroad.

For further information, contact
Neil Kotler, Office of Smithsonian
Symposia and Seminars, (202)
357-2047. ■

BULLETIN OF THE /KtjK
FEDERAL COURTS ^i^

Murder of Parole Officer Gahl Remembered as
Staff Safety Training Programs Expanded

The murder of U.S. Probation Of-
ficer Thomas E. Gahl of the Southern
District of Indiana in September 1986
was the most recent incident of se-
rious violence against U.S. probation
and pretrial services officers, and
dramatized the risks inherent in
these court employees' jobs. Michael
Wayne Jackson, a former mental pa-
tient with a lengthy criminal record,
shot Officer Gahl in Indianapolis dur-
ing a crime spree that stretched
across Indiana, Illinois, and Mis-
souri. Gahl's death was the third
employee fatality in the history of the
probation and pretrial services.

Prior to Officer Gahl's death, the
FJC's Management Training Branch
had developed an innovative, broad-
based, two-day program of staff
safety training for U.S. probation of-

AO Starts Program for
Distinguished Service

The Administrative Office has
begun a program to recognize court
employees for distinguished serv-
ice to the judiciary. Director
L. Ralph Mecham said such recog-
nition will be made when merited
by an employee whose contribu-
tions enhance the operation of the
judiciary.

Nancy M. Mayer of the District
Court for the District of Columbia is
the first employee to be recognized
under this program. Ms. Mayer's
research into grand jury utilization
and development of a grand juror
kit have led to better management
of grand juries, improvement in
grand juror morale, and substantial
reduction in costs.

The Judicial Conference has au-
thorized the AO to seek legislation
that would permit court employees
to receive cash awards under the
Incentive Awards Act. Under that
act, government employees may be
given cash awards for achieve-
ments that save the government
money or improve government op-
erations. The act does not apply to
court employees, however.

ficers and pretrial services officers.
The program's primary emphasis is
on prevention and management of
crisis situations, and emergency re-
sponses. A videotape that accom-
panies the program includes drama-
tizations of potentially dangerous
situations to which employees may
be exposed. For example, during the
"prevention" portion of the pro-
gram, participants watch a video seg-
ment that depicts a staff member re-
turning to her car in a parking
garage. The viewers imagine them-
selves in the same situation and refer
to questions in a workbook, which is
provided. The questions, and follow-
up discussion among the group of
trainees, force them to think about
pre-planning to avoid potential con-
frontation, and about such issues as
paths of escape; what the options are
(such as retreat or taking shelter);
and what defensive shields or tactics
might be available in the event of at-
tack. Similar segments deal with
safety in the office, bomb threats,
home visits, and other commonly en-
countered situations. The program
also teaches techniques useful in
longer-term officer-client relation-
ships, but which can also be applied
to chance encounters with assailants.
Several simple holds and escapes are
demonstrated and practiced.

The training program includes the
use of such techniques as lecturing,
role-playing, criticizing of the video
segments, group discussion, prob-
lem-solving exercises, and feedback
and dialogue on methods the partici-
pants have found effective in coping
with specific situations in both the
field and office. The program does
not deal with firearms or the use of
deadly force.

The program is designed for all lev-
els of probation and pretrial services
staff. It is based on research con-
ducted by the Staff Safety Curricu-
lum Planning Committee convened
by the FJC, and on the experience of
practitioners in the probation system
and of criminal justice agencies. The

Second Drug Aftercare
Program Report Issued

The FJC has recently published
The Impact of the Federal Drug After-
care Program, by James B. Eaglin of
the Center's Research Division.

This report presents the findings
of a study of what has happened to
offenders under supervision in the
drug aftercare program created un-
der the Narcotic Addict Rehabilita-
tion Act of 1966 (18 U.S.C. §§ 4251-
4255). The study was undertaken
by the FJC as the second part of a
two-phase evaluation of the after-
care program. (The first part has
been reported by the Center as
J. Eaglin, A Process-Descriptive Study
of the Drug Aftercare Program for
Drug-Dependent Federal Offenders,
FJC 1984.)

A cohort of approximately 1,000
offenders from seven federal proba-
tion offices in New York, Pennsyl-
vania, Maryland, Texas, California,
and the District of Columbia was
studied from July 1, 1982, to June
30, 1983, so as to produce system-
atic and up-to-date descriptive data
on aftercare program participants
and to idenrify significant factors
that help to explain outcomes for
those in the program. These out-
comes are partially positive (in-
creased employment and, for a ma-
jority of those studied, no arrests or
parole violations) and partially
negative (rearrests and findings of
continued drug use for some
offenders).

The report is prefaced with a
summary of the study's results. It
contains sixty-three tables outlining
study findings, along with a com-
parison of the first and second
studies.

Copies of this report can be ob-
tained from Information Services,
1520 H St., N.W., Washington, DC
20005. Enclose a self-addressed
mailing label, preferably franked
(12 oz.), but do not send an enve-
lope.

contents and methodology of the
program are set forth in the Staff
Safety Instructor's Manual, which is
made available to those who present
See STAFF SAFETY, page 5

theTHIRDbeanch

SALARIES, from page 1

senior government jobs have suf-
fered severe declines in purchasing
powder," Commission Chairman
James L. Ferguson said. The commis-
sion's data showed that for the
period 1969-86, for example, U.S.
district court judges have experi-
enced a percentage loss in real in-
come of 34 percent compared with
corporate senior staff attorneys, who
have seen a percentage increase in
real income of 16 percent.

ABA President Eugene C. Thomas
supported the commission's recom-
mendations. "It is neither good gov-
ernment nor prudent management to
continue to impose severe financial
sacrifices on federal judges," he said.
The citizens group Common Cause
issued a statement saying that it
strongly supports substantial pay in-
creases for members of Congress,
high-level executive branch officials,
and federal judges "as necessary and
in the public's best interest."

The commission noted that the
level of congressional salaries has tra-
ditionally been "linked" to the levels
in the other two branches of govern-
ment. "The Founding Fathers in-
tended Members of Congress to be
equal to the other branches in status,
prestige, ability and integrity. . . .
Therefore, we have concluded that
parity between Level II [executive
branch positions]. Congress and
judges on the Circuit Court is impor-
tant and should be maintained.
However if Congress is unable to de-

Excerpt from High Quality Leader-
ship— Our Government's Most Pre-
cious Asset, the report of the Com-
mission on Executive, Legislative,
and Judicial Salaries, Dec. 15, 1986.
After noting that the rate of federal
judicial resignations has more than
doubled since the beginning of the
1970s, due in large part to the level
of remuneration, the report con-
tinued:

"It is hard to assess the real cost
of replacing an experienced federal
judge who resigns at the pinnacle
of his career, but the implications
for the judicial system are severe. It
takes fully five years for a qualified
attorney, once appointed to the
federal bench, to reach peak effi-
ciency. Early departure thus creates
a gap in the system which at best
cannot be filled for half a decade,
but which at worst may result in a
permanent diminution in the ca-
pabilities of the service.

"As new recruitment at inade-
quate salaries threatens to bring
less qualified men and women to
the bench, the real cost cannot be
calculated in dollars. The real cost
will be in the insidious and longer
term drain imposed on the nation's
judicial system, a loss we will all
feel over time, if not now ade-
quately addressed."

velop the courage to raise its own
pay, it is better to limit the unfairness
thereby caused and not impose inad-
equate pay levels on the two other
branches," the commission's report
said. ■

Recommended Salary Increases for U.S. Judicial Personnel

Position

Current Salary*

Recommended Salary

President's

Commission's

Chief Justice

$111,700

$115,000

$175,000

Associate Justice

107,200

110,000

165,000

Circuit Judge

85,700

95,000

135,000

District Judge

81,100

89,500

130,000

Claims Court Judge

72,300

82,500

130,000

Bankruptcy Judge

70,500

72,500

120,000

Magistrate

70,500

72,500

110,000

Level V

70,800

72,500

110,000

•As of January 1987, including the recent 3

percent increase.

SOURCE: Administrative Office of the U.S

Courts.

Noteworthy

State prison population increase.

The Bureau of Justice Statistics of the
Department of Justice reports that
the state prison population has in-
creased from 115,314 to 415,796 be-
tween 1930 and 1984, with more than
two-thirds of that increase occurring
after 1975. Because the growth in
prison population has been faster
than the addition of new prison
space, the population density in state
prisons increased 45 percent during
the period 1979-84.

State court clerk, deputy clerk not
immune from suit. A U.S. district
judge has refused to dismiss a com-
plaint against a state court clerk and
deputy clerk in a lawsuit charging
them with acting in concert with a
state court judge and others to deny
the plaintiff his constitutional rights.
The lawsuit was brought against a
bank and its president, a judge in
Colorado's District Court for the
Sixth Judicial District, the clerk and
deputy clerk of that court, and other
defendants. Pitts v. First National
Bank, Civil No. 85-1131-JB (D.N.M.,
Oct. 21, 1986). The complaint alleged
that the clerk and deputy clerk failed
to file documents. The complaint
against the judge was dismissed, be-
cause all his alleged actions were
within the scope of his judicial du-
ties. The court refused to dismiss the
complaint against the clerk and dep-
uty clerk, however. Under Henriksen
V. Bentley, 644 F.2d 852 (10th Cir.
1981), clerks are entitled to absolute
immunity when performing quasi-
judicial duties or acting under explicit
instructions from a judge, but when
performing ministerial duties, they
are usually afforded only "qualitied
immunity." The court held that the
alleged conduct complained of, fail-
ing to file documents, "is a minis-
terial function for which a clerk
would be afforded only qualified im-
munity." B

sssm

CHIEF JUSTICE, from page 1

pendent judiciary. Should the Presi-
dent and Congress fail to make realis-
tic salary adjustments for judges, the
present drawbacks to that honorable
service will be exacerbated."

The Chief Justice praised Chief Jus-
tice Burger for his many contribu-
tions to the judiciary during his ten-
ure as Chief Justice, stating that Chief
Justice Burger had "demanded . . .
that we think of the administration of
justice in systemic terms." He noted
as being among the accomplishments
marking Chief Justice Burger's ten-
ure: circuit executives for federal
courts, the American Inns of Court,
the National Center for State Courts,
the Institute for Court Management,
the State Justice Institute, federal-
state judicial councils, and an annual
seminar for leaders of the three
branches to exchange views.

The Chief Justice cited a number of
steps taken in 1986 to meet evolving
needs of the judiciary: the enactment
of a Social Security law change affect-
ing senior judges; the approval of a
supplemental appropriations request
that "reheved the courts of the di-
lemma of either extending a brief
moratorium on civil jury trials or al-
lowing such trials to proceed with no
appropriated funds for juror fees";
enactment of improvements in the
Judicial Survivors' Annuity System;
the U.S. Sentencing Commission's
release of preliminary draft sentenc-
ing guidehnes as mandated by Con-
gress; and Congress's authorization
of 52 additional bankruptcy judge-
ships. Pointing out that "last year,
our bankruptcy courts had a 31 per-
cent increase of new case filings," the
Chief Justice said, "I am confident

Congress will act quickly to appropri-
ate funds for salaries, thus allowing
the courts of appeals to fill those
positions."

Looking ahead to 1987, the Chief
Justice urged public officials and cit-
izens to participate in the observance
of the bicentennial of the Constitu-
tion.

The Chief Justice urged Congress
to "enact appropriate legislation" to
create a national court of appeals or
an intercircuit tribunal, as recom-
mended by Chief Justice Burger. Also
needed, the Chief Justice said, is the
elimination of "as much of the Su-
preme Court's mandatory jurisdic-
tion as the Constitution permits."

"[W]e must pay careful attention to
the experience of the federal district
courts currently experimenting with
court-annexed arbitration," the mes-
sage stated, and must also welcome
the continued "lively debate" among
the bench and bar about the 1983
rules amendments creating "sanction
power" to constrain abuse of the liti-
gation process.

"The developments with the sen-
tencing guidelines should be closely
monitored," with a period for the ju-
diciary and the bar to study and learn
the new procedures before their im-
plementation.

Calling it a "matter of judicial
housekeeping," the Chief Justice
noted his appointment of a commit-
tee of judges "to help me assess the
internal structure and procedures of
the Judicial Conference of the United
States," with a goal of making the
Conference "even more effective."

[Copies of the Chief Justice's 1986
Year End Statement are available
from the FJC's Information Services
Office.! ■

5TAFF SAFETY, from page 3
the program.

The safety training program is de-
signed for classes of not fewer than
15 and not more than 30 persons.
Current demand for the program is
so high that presentations will be
scheduled through fiscal year 1988.

Questions concerning the staff
safety training program can be ad-
dressed to David Leathery, Training
Administrator, Division of Continu-
ing Education and Training, FJC,
1520 H Street, N.W., Washington,
DC 20005 (tel. 202/ 633-6024). ■

BULLETIN OF THE /ffA
FEDERAL COURTS ^i^

Written Comments
On Revised Draft
Guidelines Sought

The U.S. Sentencing Commission
has asked to receive written com-
ments on its revised draft sentencing
guidelines no later than Mar. 16. It
will send the revised draft to all U.S.
district and circuit judges, magis-
trates, federal public defenders, chief
U.S. probation officers, U.S. at-

Sentencing
Commission

NEWS

FROM

THE

torneys, and many defense at-
torneys, as well as other interested
organizations and individuals.

The commission must submit the
guidelines to Congress in final form
by Apr. 13.

The commission describes this re-
vised draft as differing "significantly
in both form and substance" from the
preliminary draft issued last Septem-
ber. Commission Chairman William
W. Wilkins, Jr., said that "those who
study the revised draft will find it
more workable as well as the-
oretically sound and principled."

The commission noted the
"thoughtful comments from hun-
dreds of individuals" on the prelimi-
nary draft had illuminated various
problems that it has addressed in the
revised draft, including:

Complexity. The commission de-
scribes the revised draft as "signifi-
cantly simpler and easier to under-
stand and apply," with mathematical
computations greatly reduced, and
multiplication and fractions entirely
See SENTENCING, page 6

Personnel

Death

Walter R. Mansfield, U.S. Circuit Judge,
2d Cir., Jan. 7

theTHIRDbranch

SENTENCING, from page 5
eliminated.

Cross references. Cross references
within the guidelines have been
eliminated.

Severity. The revised draft's nu-
merical values for various offenses
have "been extensively revised from
the preliminary draft ... in light of
continuing empirical research, public
comment, and commission discus-
sion." The commission pointed out
again that the values in the prelimi-
nary draft guidelines were largely to
facilitate analysis and testing of its
format and structure.

Discretion. The revised draft al-
lows for the exercise of "significantly
more" discretion by the judge at sen-
tencing.

Impact analysis. The commission
"fully realizes its statutory directive

Positions Available

Circuit Executive, 10th Cir. Salary
(prior to proposed presidential/congres-
sional salary increase) to $70,761. Posi-
tion involves top-level executive func-
tions; familiarity with accounting
principles, statistics, and computeriza-
tion. Law degree highly desirable. See
28 U.S.C. § 332(e) and (f) for special
qualifications and general functions.
Send resume by Mar. 6 to Chief Judge
William J. HoUoway, c/o Circuit Execu-
tive's Office, C-529, U.S. Courthouse,
Denver, CO 80294 (tel. 918/581-7416).

Director, Office of Staff Attorneys,
9th Cir. Salary from $45,763 to $69,976.
Two-year term commencing September
1987. Supervises 31 court attorneys and
support staff. Applicants should have at
least 5 years' legal experience, with aca-
demic experience preferred. For details
contact Gary Widman, Director, Office
of Staff Attorneys, U.S. Court of Ap-
peals for the Ninth Circuit, P O. Box
547, San Francisco, CA 94101 (tel.
415/556-7361).

EQUAL OPPORTUNITY EMPLOYERS

to determine prison impact" but re-
garded an impact study on the pre-
liminary draft as "an unjustified ex-
penditure of resources" in light of its
deadlines and the tentative nature of
that document. It said that executing
an impact analysis on the preliminary
draft would have delayed publication
until early this year and severely lim-
ited the opportunity for public com-
ment. The commission's research
staff and the Bureau of Prisons are
jointly developing a computer model
to assess the impact a more finalized
set of guidelines would have on cor-
rectional resources.

Correctional resources. The com-
mission acknowledged that "respon-
sible public policy must be weighed
with the costs of that policy," but
noted that the legislative history is
explicit that its policy decisions
should not be bound by existing cor-
rectional resources "in producing
guidelines that best achieve the pur-
poses of sentencing."

Probationary sentences. The re-
vised draft provides the court "more
latitude" in imposing a probationary
sentence but does not make proba-
tion a viable sentencing option for
every offense. "Publication of the
preliminary draft last September
proved extremely beneficial to the
commission," said Judge Wilkins.
"The revised draft offers a vehicle for
extensive public comment. We again
solicit your critical analysis." ■

Calendar

Feb. 4-6 Conference of Metropolitan
Chief Judges

Feb. 5-6 Judicial Conference Committee
on Administration of the Criminal
Law

Feb. 6 Judicial Conference Committee
to Study the Judicial Conference

Feb. 12-13 Judicial Conference Ad-
visory Committee on Civil Rules

SOFAER, from page 1

is a place where we ought to be sub-
jecting the security interests of the
United States to a final determina-
tion. Eight out of the 15 judges there
come from countries that don't ever
take anything to that court. It is not
the place where Congress, certainly,
wants us to have issues of that kind
resolved.

What are your responsibilities as
State Department Legal Adviser?

I have a variety of responsibilities
just like a lawyer would in a corpora-
tion or a major agency. I serve my
boss, the Secretary. I attend various
meetings in the building for the pur-
pose of listening and ensuring that
nothing is happening that might
create a problem, and I suggest ideas
that relate to law. I review the work
of my staff on its way up to the sev-
enth-floor principals. I also serve
other principals, such as the Deputy
Secretary and the Under Secretary for
Political and Military Affairs. Each of
these principals is assigned areas of
responsibility and sometimes they
need legal advice and they seek it
from me. In addition to that, I have
my own areas of responsibility, such
as sending letters to courts suggest-
ing the law, handling extradition ne-
gotiations, or extradition treaty nego-
tiations, or handling relations with
law enforcement agencies. But the
great mass of work comes from my
staff. It is generated by requests and
issues that they receive from their cli-
ents around the world. I review those
and tell people what I think. The
work is very high quality work but
occasionally it can — I hope does-
benefit from my guidance.

And then there are special pro-
jects. The Secretary will say do X and
I have had the good fortune of hav-
ing certain assignments where I
really took a lead role as a lawyer-
diplomat to work on specific prob-
lems overseas. That kind of thing has
happened to legal advisers in the
past and it will happen to legal ad-
visers in the future. It is just a ques-
tion of being required for the right
See SOFAER, page 7

SOFAER, from page 6

job at the right time.

How large a staff do you have to
help discharge your responsibilities
here and abroad?

I have a staff of about a hundred
lawyers. They serve the entire State
Department, including some 19 divi-
sions, the regional bureaus, and the
functional bureaus. 1 have three or
four lawyers overseas. We have the
U.S. Iranian Claims Tribunal that we
work with on those plans. So it is a
big office. It has been a great chal-
lenge administratively to run this of-
fice.

Would you comment on the rela-
tionship between the State Depart-
ment and the Department of Justice
since you have been in your present
job. Do some of the responsibilities
overlap?

Oh, sure. We have a lot of interna-
tional antitrust issues so we confer
with people in the Antitrust Division.
We have many, many dealings with
the Office of Legal Counsel. The rela-
tionship is very good. We work very
closely with Justice. They have their
agenda and we have our agenda.
They see themselves as becoming in-
creasingly involved in international
affairs, and properly so.

On the other hand, we still remain
responsible for assisting the Secre-
tary of State in conducting foreign af-
fairs and making sure that foreign af-
'airs concerns are satisfied in
:onnection with legal activities. Oc-
:asionally there are differences of
/iew with the Department of Justice
Jcross the board on a variety of is-
sues. Many of these differences of
/iew are not differences between the
egal people in each of the agencies,
t will be differences of view between
he head of a regional bureau here,
et's say the African Bureau, and a
J.S. attorney concerning a case that
le or she is determined to pursue in
he way one pursues an ordinary
:ase. A regional assistant will be very
:oncerned about the impact of some
ases or some aspect of a case. We
ometimes need to educate Depart-
nent of Justice personnel, prosecu-

tors and administrators, about the
damage that can be done, sometimes
needlessly, as a result of the normal
kind of publicity-seeking activities of
the prosecution.

Does it concern you when you
think that you cannot possibly read
every indictment?

Absolutely, it does scare me. 1 have
had experiences where we have spe-
cifically asked to see indictments be-
fore they came down, and they have
come down without our seeing them.
And they have been harmful. So it
does scare me. It's my job to review
those kinds of papers and the U.S. at-
torneys resent it. 1 remember what it
was like to be in a U.S. attorney's of-
fice and we didn't like being re-
viewed by anybody — not even by
people in the Department of Justice

BULLETIN OF THE /ffjK
FEDERAL COURTS rb^

mer. Israel and Egypt have had a
long-standing dispute about who
owns Taba, which is a little piece of
land that the Israelis did not give
back to Egypt when they withdrew
from Sinai. The dispute goes beyond
Taba. There are some 13 points that
are still in dispute along the Egyp-
tian-Israeli border. I went out to help
the parties develop a compromis, as
we call it, essentially an agreement
under which the dispute would be
arbitrated. I didn't go out to mediate
or decide the dispute but to help the
parties agree on the form and content
of this arbitration compromis. I think I
was asked to do it because the issues
and the whole process of developing
a compromis are intensely legal. It is a
lawyer's job in large part. We had
one of the lawyers on my staff help-

''I was actually shuttling between [Egypt and Israel] on
three different trips over the whole summer ... to help
the parties agree on . . . arbitration."

in Washington. I am not at all sur-
prised if they don't appreciate our in-
terest in their cases.

They particularly don't want
somebody from Washington coming
and taking their case over?

Absolutely, but we don't try to
take over their case. Sometimes you
get a case like Zakharov, which was
in Brooklyn, a spy case against a So-
viet person in the U.N. We had our
views and some people had different
views. I said "some people" because
I don't know the different views on
what was done there. In that case, I
can tell you the issues were pre-
sented to the high officials in our
government and all the way up to the
President. There was never a dissent
of any kind from what the President
decided.

You went to Israel to arbitrate a
border dispute. Why were you se-
lected?

Yes, Egypt and Israel. I went to
both countries. I was actually shut-
tling between both countries on three
different trips over the whole sum-

ing some of the diplomats in the de-
partment do it. They had reached a
point where they weren't making
any more progress, so the Secretary
asked me to step in and see what I
could do to make it move. The at-
tempt to develop a compromis had
been underway for over a year before
1 got involved. It had been going on
and on and then finally it reached
sort of a deadlock, and the Secretary
asked me to go out and see what I
could do. I went out there and
worked with my own lawyer, an ex-
cellent fellow. I also worked with the
diplomats over there, our ambas-
sadors; I had the advice and support
of our people here and poHtical of-
ficers in each of the embassies; so we
had a team.

There is so much talent here, ready
to jump in and do some interesting
project. When your number is called
and you get to do something like that
you get a terrific team because you
have these people who are talented,
capable, and very supportive. You
See SOFAER, page 8

THETHIRD BRANCH

SOFAER, from page 7
can contact anyone in the govern-
ment; it is extraordinary. For exam-
ple, in this particular instance, the
Defense Mapping Agency gave us a
lot of help in furnishing the tech-
nicalities of the compromis at the end
of the process. We also got help from
the Vice President. Vice President
Bush played a tremendously crucial
role during his trip. He personally
visited there. Several issues re-
mained unsettled, and what we
needed was a great sense of urgency
on the part of the parties to get those
issues wrapped up. So, suddenly
there was the Vice President, whom
both sides respected, going out
there. I went to Vice President Bush's
office before this trip and we talked it
through. I also talked to his staff. We
prepared him to play a role in the
process. His presence made a real
difference, and he really moved that
matter along very quickly.
Is it now settled?

The compromis is final and was duly
ratified by both governments in early
December. So the arbitration process
is under way. And Egypt has now
sent its ambassador back to Israel.
Egypt had refused to staff its em-
bassy with an ambassador since the
Lebanon war, and the Taba com-
promis agreement was the last condi-
tion that had to be satisfied before
President Mubarak would once again
staff that embassy with a person of
ambassadorial rank. The person who
was there. Ambassador Bassiouny,
was excellent. He had the rank of
charge d'affaires and was promoted
to ambassador when this happened.
So Egypt now has an ambassador in
Israel, and he does a very good job.

In an essay in Foreign Affairs you
argue that "law . . . has been placed
very much at the service of those
who embrace political violence." Do
you believe that there were valid le-
gal reasons to oppose the extradition
treaty between the United States and
Great Britain?

No. 1 think that the opposition was
based on deep emotional pain that
comes from the Irish/British experi-

ence. I found it very ironic to sit there
and be berated by members of the
Senate Foreign Relations Committee,
particularly the Irish ones, for sup-
porting the treaty. My career has
somehow intersected with great
American Irishmen; they have
played an incredibly important part
in my life, starhng with Skelly Wright
and William Brennan, both of whom
I clerked for. Senator Moynihan, who

Abraham D. Sofaer

"Terrorism has, through
no choice of my own,
been a major part of my
job."

essentially made me a judge, and a
whole series of other people. It was
bizarre to be accused of being anti-
Irish.

My position has always been that
you can't have your favorite terror-
ists, and these senators know that.
They issued a "Sons of Ireland"
statement, which all of them had
signed, in which they said violence is
advancing nothing in Northern Ire-
land but more bloodshed and more
violence. And, they said, violence is
impermissible in pursuit of these ob-
jectives, whatever your objectives
are. That is all we were saying in sup-
porting the supplemental extradition
treaty. The effort there was to stop
the process that had begun in our
courts of finding that there was some
kind of a revolution in Northern Ire-
land that entitled people to act vio-
lently against policemen and judges.

and potentially against civilians.
Now the people involved in particu-
lar cases may have been charged with
killing a soldier or killing a police-
man, but they came from organiza-
tions that didn't limit their attention
to soldiers and policemen. Further-
more, I said to the Senate Commit-
tee, how could we really make this
distinction in a democracy, where we
have to rely on the vote in order to
bring about change? These terrorists
said that they are part of a revolution-
ary movement — a war of national lib-
eration as they call it — that they
really are military people fighting a
war, rather than criminals commit-
ting a murder. How would we like it,
and how do we like it, when some-
one in the FALN sets off a bomb in
southern Manhattan and blows up
an Irish policeman? It happens that a
bomb two years ago, on Christmas
Day I believe, blinded an Irish-Amer-
ican policeman and blew the hand off
another. And this was done by peo-
ple here who represent 1 percent of
the population of Puerto Rico, who
want freedom. However honest their
feelings, however warmly they es-
pouse their cause, we just cannot as a
democratic society allow people to go
around killing other people. If you
had a dictatorship and someone was
in a revolutionary movement against
it, well, then we are not going to seek
to limit the political offense exception
in such countries. We told the Senate
that. No matter how intensely you
feel about Northern Ireland and the
Irish cause, the United Kingdom is
not a dictatorship. There are ways of
bringing about change through the
democratic process, and the recent
agreement that was obtained be-
tween the Republic of Ireland and the
United Kingdom is an indication of
that. I think that Irish Catholics and
Irish Protestants can live together be-
cause we know that from the Re-
public.

Terrorism has, through no choice

of my own, been a major part of my

job. That is why I wrote my article,

because I had run into so many areas

See SOFAER, page 9

SOFAER, from page 8
in which I thought the law was not
being used to bring about civilized
order; rather, it was being used to en-
courage violence.

Do you believe there is now a
positive trend to get away from that?
Definitely. I was with the Indian le-
gal adviser yesterday and we were
talking about this trend. People in
the nonaligned nations, people ev-
erywhere, even in the Soviet Union,
ill understand that it went too far.
rerrorism is horrible; it interferes
A^ith commerce, it interferes with
progress on the issues. It would be
nconceivable to me to have someone
ike Arafat returning to the U.N. in
riumph like he did in the old days.
Ve have learned a lot since then.

Are you optimistic that terrorism
s on the wane?

Well, historically it goes in cycles,
'ou have to be realistic about it; it
;oes in cycles. The chances are, even
f we didn't do anything, it would
low down just because of forces and
eople getting sick and tired of it. I
link Arabs, the Arab people of the
rorld, overwhelmingly are sick and
red of terrorist violence. Most of the
ictims of the radical Palestinian
roups have been Palestinians, mod-
rate Palestinians. Some of these
moderate Palestinians support Ara-
it. They are out there working for
le Palestinian state, but they are not
idical enough for other Palestinians
ho therefore kill them. Take the
layor of Nablus, El Musri. Nablus is
le most populous Arab city of the
est Bank. It is a very powerful city
ith a big Arab population. King
ussein approved his selection as
ayor, Arafat approved his selec-
5n, and Israel approved his selec-
m as part of a process that we have
?en working on to improve the
lality of life on the West Bank and
create leadership in the local com-
unities— working toward a time
hen the Arab population can take
I more and more of their self-gov-
nment. Everyone understands this
a very difficult and painstaking
ocess; that people have to make

compromises in order to bring about
these little steps, such as appointing
El Musri as mayor. He was a classic
Palestinian nationalist who believed
that his people should have their
own land, but he was also a practical
man, a pragmatist at the same time, a
brilliant fellow of good personal
qualities and who came from one of
the most powerful and wealthy fam-
ilies in the area. He was an ideal fig-
ure to help the Palestinian cause, and
yet they killed him on the streets of
Nablus, just shot him in the back. It
is such a waste to see a person like

"There were 45,000
waivers of the McCarran
Act exclusion last year
. . . and in only a handful
of cases were waivers
denied."

that come up among his people and
be senselessly killed, a man who
could have performed a really impor-
tant role for his people, who could
have helped overcome differences
and built bridges to the future. He
was no friend of Israel in one sense;
but he was a pragmatist, a man who
could work with Israel, with Jordan,
with Arafat, and with everybody in
the United States to improve things
for his people in a way that was pos-
sible. His murder is the kind of thing
that people get tired of. There is
going to be some more of it, sure,
particularly since guns cost so little
now and bombs are so easy to make.
But I think that the wheel has turned
on political violence.

Do you get involved in the so-
called "watch list" for foreign cit-
izens whose entry into this country
is deemed undesirable?

I am one of those people who
passes on those problems, but I don't
decide them finally. Generally the
person who ultimately makes those
decisions, absent special reasons, is
Michael Armacost, the Under Secre-
tary for Political and Military Affairs.

BULLETIN OF THE /d7\
FEDERAL COURTS ^i*^

Generally speaking the regional bu-
reau is involved, consular affairs, hu-
man rights, possibly U.N. affairs and
law (legal affairs) are all heard from
on each of those issues. I try to imple-
ment the Secretary's policy. The Sec-
retary does not believe in ideological
exclusion. He has said so. The At-
torney General has concurred in that
and we — the top people in the ad-
ministration— agree with them. We
do not believe that people ought to
be excluded solely for their beliefs or
for their party membership. We may
actually feel on the basis of some evi-
dence— not overwhelming, not the
kind of evidence we would want to
take to court, but some evidence —
that the person is here on a mission
of some kind to collect information,
or to collect money for some cause
that the United States feels is not in
its interest. Then the Secretary will
make a determination. There were
45,000 waivers of the McCarran Act
exclusion last year; 45,000 waivers,
and in only a handful of cases were
waivers denied. Looking at this issue
in proper focus, waivers are virtually
routine.

What about alien plaintiffs in the
federal courts who are trying to use
the federal court system as a forum
for their disputes?

Well, the issue always relates to ju-
risdiction. If there is jurisdiction they
have the right to come here and use
the courts. The Constitution of the
United States clearly contemplated
that citizens of a foreign country, and
even foreign states, could come to
our courts and sue. The Constitution
explicitly says the Supreme Court
will have original jurisdiction over
certain types of cases involving for-
eigners. And in our world the fact is
that sometimes the United States is
an important market economically,
and people will sue here because of
that and have a jurisdictional basis
for doing it. One case that I handled,
Sharon v. Time Magazine, is an exam-
ple. Israeli General Sharon came to
New York to sue an American maga-
zine. That American magazine is
See SOFAER, page 10

theTHIEDbranch

SOFAER, from page 9

published here in the United States,
but is also distributed in Israel and
around the world. I certainly raised
with the parties whether they had
any question about the jurisdiction of
the federal courts. Cravath, Swain &
Moore, who represented the de-
fendant and who must have done
millions of dollars of work in this one
case, never raised a jurisdictional ob-
jection. That is the world we live in.
We have very broad jurisdictional
statutes.

Were you involved in the decision
to bomb Libya?

I was involved in the whole proc-
ess that led to that. We got to that
point only after a number of lesser
measures were exhausted, including
our Libyan sanctions in January,
which were drafted by my office. My
opinion on the legality of that kind of
an action was written at that time.

Have you any message for your
former colleagues on the bench?

Well, that I miss the bench. I miss
playing an important role in cases be-
tween people. I miss the structure
and discipline of the bench. I was in a
sense a big fish in a small pond in my
court. You had your case, and it was
your case. You were in charge of it as
a district judge, and generally speak-
ing 99 percent of the time that was
the end of the matter.

I am very proud of the American
system. In my present job I am a
small fish in a big pond. There is a lot
more room to swim and enjoy your-
self, and you look at a lot of different
issues. But it is a different world. You
have far less guaranteed authority or
guaranteed role. It is more exciting as
a result, because you don't know
what you are going to do tomorrow,
and it is more interesting if you
haven't done it. If I had done my
present job for six years, I am sure I
would find being a judge more inter-
esting. But I absolutely believe that
my former colleagues on the federal
bench are doing the work of God. ■

COMPENSATION, from page 2

by the district court, which may
make a de novo determination of the
matter.

The Centers for Disease Control
have estimated that the minimum
number of claims that would be filed
under the compensation program
would be in excess of 9,000 annually.
The act makes the filing of a petition
and judgment on the petition a pre-
condition to the right to bring a sub-
sequent suit in state or federal court.
It also permits petitions to be filed
concerning some claims that were
previously the subject of unsuccess-
ful litigation.

Some observers have seen the lat-
ter feature as a threat to the finality of
state and federal judgments. They
are also concerned that provisions in
the act allowing the petitioner an op-
tion to accept or reject the final judg-
ment of the district court may violate
the Article III prohibition against ad-
visory opinions. B

BULLETIN Of THE FEDERAL COURTS

theTHIRDbbanch

First
Class
Mail

VoL 19 No. 2 February 1987

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

Official Business

Postage and

fees paid

United States

Courts

U.S. GOVERNMENT PRINTING OFFICE 1987^91-221^0010

u 10. 3/3/

BULLETIN OF THE FEDERAL COURTS

'-'{|. W*

theTI

BRANCH

VOLUME 19
NUMBER 3
MARCH 1987

Deputy Attorney General Burns Discusses Role
Of Special Masters, Caseloads, Other Concerns

Deputy Attorney General Arnold I. tablished by the attorney general. In

Burns, born in New York City, received a
B.A. from Union College and an LL.B.
from Cornell University. He was a part-
ner in a New York law firm for many
years. In 1986, he was appointed associ-
ate attorney general. Shortly thereafter,
he became deputy attorney general.

How has the Justice Department
operated during your tenure as dep-
uty attorney general?

The policy of the department is es-

this Department of Justice, we hay©^*'
an enormous amount of collegiality?^
The attorney general of the United
States, Ed Meese, is a very, coilegial;^.
man. By that I mean that he seeks ott^
the advice and the opinions of oth-
ers. So policy is really, I think, a col-
legial matter with a lot of debate, dis-
cussion, consideration, with the final
decision resting with the attornf.y
general. <<:.?■'* ,<

What are your responsibilities as
deputy attorney general?

As we operate today the deputy at-
torney general is the day-to-day chief
operating officer with the Depart-
ment of Justice, and the attorney gen-
eral is the chairman of the board and
chief executive officer, consistent
with what I have said to you here-
tofore about the policy-making in the
department. As the chief operating
officer of the Department of Justice, 1
am responsible to the attorney gen-
eral for all the civil and criminal mat-
ters in the department. Associate At-
torney General Steven Trott reports

Judge Alvin B. Rubin
^ Appointed as FJC

Board Member

See BURNS, page 2

[nterim Local Rules for Bankruptcy Cases
Proposed Following Enactment of New Law

The Advisory Committee on Bank-
uptcy Rules of the Committee on
?ules of Practice and Procedure of
he Judicial Conference of the United
>tates has drafted and distributed to
ill district courts and bankruptcy
:ourts interim rules that it recom-
nends be adopted as local rules of
:ourt in light of recent legislation af-
ecting some bankruptcy cases. That
egislation, the "Bankruptcy Judges,
Jnited States Trustees, and Family
•armer Bankruptcy Act of 1986,"
'ub. L. No. 99-554, took effect on
^ov. 26, 1986. The act made several

changes in the Bankruptcy Code, in-
cluding the addition of a new chapter
12, dealing with family farmer debt
adjustment. The interim local rules
are intended to provide guidance to
the bench and bar until new rules can
be approved by the Judicial Con-
ference, the Supreme Court, and
Congress.

The interim rules will be binding
only to the extent that they are
adopted as local rules of court or are
made applicable to a particular case
by a bankruptcy judge in the exercise
of the judicial function. ■

Judge Alvin B. Rubin (5th Cir.) has
been elected by the Judicial Con-
ference of the United States to the
Board of the FJC, to fill the unexpired
term of Judge ArUn M. Adams (3rd
Cir.), who has resigned from the
bench. Judge Rubin has been on the
Fifth Circuit bench since 1977. He
served as a U.S. district judge (E.D.
La.) from 1966 to 1977.

A graduate of Louisiana State Uni-
versity (B.S., LL.B.), Judge Rubin
served in the U.S. Army from 1941 to
1946. He was an arbitrator for the
Federal Mediation and Conciliation
Service from 1949 to 1966 and is an
adjunct professor at LSU Law School.
Judge Rubin was a member of the
Judicial Conference Subcommittee on
Judicial Statistics, a member of the
Committee on Court Administration,
and chairman of the Subcommittee to
Examine Possible Alternatives to Jury
Trials in Complex Protracted Civil
Cases. He has lectured frequently at
FJC seminars and workshops and has
coauthored Law Clerk Handbook: A
Handbook for Federal District and Appel-
late Court Law Clerks, a second edition
of which will be published this year.

THETHIRD BRANCH

BURNS, from page 1

to the attorney general on criminal
matters emanating from the Criminal
Division, the Bureau of Prisons, and
the Drug Enforcement Agency, on
some FBI matters, and on matters
from the U.S. Marshals Service. All
of those matters I mentioned are re-
ported to the attorney general
through the deputy attorney general.
As deputy attorney general, I super-
vise our civil litigating divisions,
which include the Tax Division, the
Civil Division, the Civil Rights Divi-
sion, the Antitrust Division, and the
Lands and Natural Resources Divi-
sion, each of which has important
criminal jurisdiction.

Also, the deputy attorney general
supervises the U.S. bankruptcy
trustee program, emerging as some-
thing more important with new legis-
lation enacted by the 99th Congress.
The new law expands and makes
permanent the U.S. bankruptcy
trustee program. Foreign claims set-
tlement also comes under the deputy
attorney general. The deputy at-
torney general is responsible for the
administration of the department,
which includes the budget, audit,
and personnel and training and
things of that nature.

What are your priorities?

The Department of Justice has an
established set of priorities that have
been set by the attorney general. We
consider the war on drugs to be our
number-one priority. With new anti-
drug legislation that came out of the
Congress last year, we are going to

THETHM) BRANCH

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.

Co-editors

continue our "full court press" — and
with added resources and larger
efforts. The war against organized
crime continues to be an important
priority, and if one reads the press
one can truly conclude that we have
broken the back of organized crime in
this nation. We've broken the code of
silence, we've broken up Mafia fam-
ilies. Judge Richard Owen in New
York sentenced each of a number of
leading Mafia figures to a hundred
years in the penitentiary. Economic
crime continues to be an important
priority. The enforcement of our civil
rights laws continues to be an impor-
tant priority. We have broken the
back of the Ku Klux Klan, for exam-
ple, in our enforcement of civil
rights.

The war against international ter-
rorism continues to be very impor-
tant, and the incidence of terrorism
here at home is way down. There
were 6 incidents in the continental
United States last year; that is down
from more than 25 three years before.
We are working effectively in the
area of terrorism. The protection of
the U.S. treasury continues to be an
important aspect of our work in the
Department of Justice. We have
205,000 pending cases with claims
aggregating some 500 bUlion dollars,
so that is very important. The gov-
ernment continues to be sued; it is
not up dramatically, but it continues
apace. We are involved in the affir-
mative civil litigation for the govern-
ment— suing people who owe the
government money — and that is im-
portant, particularly in cases involv-
ing Defense Department fraud. Not
only are we interested in prosecuting
crime, but we are also interested in
recovering monies out of which the
government has been defrauded.
The enforcement of our antitrust
laws continues to be an important
priority, as does the protection of our
environment through both civil and
criminal litigation. 1 think you have
gotten the picture.

Our plate is full and getting fuller.
Three pieces of legislation alone last
year have added mightily to our

AO Memo on Anti-Drug
Act Penalties Available

Federal judicial personnel inter-
ested in obtaining a copy of a mem-
orandum prepared by the AO and
previously circulated concerning
provisions of the Anti-Drug Abuse
Act of 1986 that redefine and in-
crease penalties for some drug-
related offenses and prescribe man-
datory minimum sentences for cer-
tain violations (including manda-
tory terms of supervised release)
may write to the FJC's Information
Services Office or to the director of
the AO.

plates. First, I mentioned the anti-
drug legislation; second, the immi-
gration bill; and third, the bank-
ruptcy judgeship and U.S. trustee
legislation. The President has sub-
mitted a budget for 1988, and the re-
sources that the President is asking
for the Department of Justice will in-
clude substantial additional re-
sources for our U.S. attorneys and re-
sources for investigators in the Drug
Enforcement Administration, the
FBI, the Marshals Service, and INS.
So we are looking forward to the im-
plementation of those new laws and
to continued effective civil and crimi-
nal law enforcement.

What have you had in mind in
making managerial changes?

First, kinds of managerial pri-
orities. The attorney general and I are
very anxious to continue working to
bring the Department of Justice to-
gether and to have it become more of
a unified department— increasing
communication and liaison between
the people here in the main Justice
Department building and our 93 U.S.
attorneys' offices across the country.

Second, along the same lines, we
are anxious to bring together the
components of the Department of
Justice — the Bureau of Prisons, FBI,
and so forth. We see in our mind's
eye greater cross-pollination with re-
spect to personnel and communica-
tion among all of our components
and the people in this main building.
See BURNS, page 4

BULLETIN OF THE /fM,
FEDERAL COURTS ^1*^

IheSourq

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 mailing label, pref-
erably franked (but do not send an envelope), and
addressed to Federal judicial Center, Information
Senyices, 1520 H Street. N.W., Washington, DC
20005.

Bennett, Robert W. "Judicial Review as
Law." 75 Illinois Bar J. 202 (1986).

Burbank, Stephen B. "Interjurisdic-
tional Preclusion, Full Faith and Credit
and Federal Common Law: A General
Approach." 71 Cornell L. Rev. 733 (1986).

Burger, Warren E. "Lawyers and the
Framing of the Constitution." 59 New
York State B.J. 10 (1987).

Carter, Gary W. "The Commissioner's

Sentencing

NEWS

FROM

THE

Commission

The U.S. Sentencing Commission
las scheduled public hearings for
vlar. 11-12 in Washington, D.C., to
eceive testimony on its revised draft
)f sentencing guidelines. The hear-
ngs will be held in the Ceremonial
lourtroom of the U.S. Courthouse
>n 3rd St. and Constitution Ave.,
J.W.

All Article III judges, members of
Congress, U.S. attorneys, federal
•ublic defenders, U.S. magistrates,
hief probation officers, and U.S.
Tobation offices were mailed copies
f the revised draft early in February,
^cause of tight deadlines for issuing
nal guidelines, the commission re-
uests that all comments on the draft
e received by the commission by
lar. 16.

The commission was also consider-
ig whether to publish sentencing
uidelines for federal capital of-
?nses, following a hearing Feb. 17
eld to determine the commission's
?sponsibility concerning such
uidelines. ■

Nonacquiescence: A Case for a National
Court of Tax Appeals." 59 Temple L.Q
879 (1986).

Federal Judicial Workload Statistics. Ad-
ministrative Office of the U.S. Courts,
September 1986.

Feinberg, Kenneth R., & John S. Gom-
perts. "Attorneys' Fees in the Agent Or-
ange Litigation: Modifying the Lodestar
Analysis for Mass Tort Cases." 14 New
York University Rev. of Law & Social Change
613 (1986).

Fish, Peter G. "From Virginia Readjus-
ter to United States Senior Circuit Judge:
The Ascent of Edmund Waddill, Jr.
(1885-1931)." 30 American J. of Legal His-
tory 199 (1986).

Freer, Richard D. "Rethinking Com-
pulsory Joinder: A Proposal to Restruc-
ture Federal Rule 19." 60 New York Uni-
versity L. Rev. 1061 (1985).

Goldman, Sheldon, & Charles M.
Lamb. Judicial Conflict and Consensus: Be-
havioral Studies of American Appellate
Courts. University Press of Kentucky,
1986.

1^ Heflin, Howell. "Tribute to Judge
John C. Godbold." 132 Congressional Rec.
517,227-28 (daily ed. Oct. 18, 1986).

"Judicial Activism in the States: The
California & Texas Courts." 2 Bench-
mark— A Bimonthly Report on the Constitu-
tion and the Courts nos. 3 & 4 (May-Aug
1986).

Kakalik, James S., & Nicholas M. Pace.
Costs and Compensation Paid in Tort Litiga-
tion. Institute for Civil Justice, Rand Cor-
poration, 1986.

Lieberman, Jethro K. The Enduring Con-
See SOURCE, page 8

Robert Feidler Is New
Legislative Affairs
Officer at AO

Robert E. Feidler joined the Ad-
ministrative Office last month as the
new head of the Legislative and Pub-
lic Affairs Office. Immediately prior
to joining the AO, Mr. Feidler was
chief counsel and staff director of the
Subcommittee on Patents, Copy-
rights and Trademarks of the Senate
Committee on the Judiciary. From
1981 to 1986, he was chief minority
counsel of the Senate Judiciary Com-
mittee's Subcommittee on the Consti-
tution, and from 1977 to 1980, he was
chief counsel of that committee's
Subcommittee on Improvements in
Judicial Machinery.

Mr. Feidler has worked on most
bills and issues related to the federal
courts over the last decade. For the
last five years he has also been in-
volved in most major antitrust and
intellectual property issues. He is a
major in the U.S. Army Reserve.

Paul Summitt, who has been with
the AO since 1984, will be Mr.
Feidler's deputy. Prior to coming to
the AO, Mr. Summitt was special
counsel for criminal law to the Senate
Committee on the Judiciary, and he
has held other jobs with that commit-
tee and with the U.S. Department of
Justice. B

1987 Circuit Judicial Conferences

First Circuit
Second Circuit
Third Circuit
Fourth Circuit
Fifth Circuit
Sbcth Circuit
Seventh Circuit
Eighth Circuit
Ninth Circuit
Tenth Circuit
Eleventh Circuit
D.C. Circuit
Federal Circuit

Oct. 13-15
Oct. 15-17
Sept. 16-18
June 25-27
Apr. 20-22
June 3-6
May 10-13
July 16-18
Aug. 17-21
July 29-31
May 10-12
May 27-30
May 8

Dan vers, Mass.
Hershey, Pa.
Philadelphia, Pa.
Hot Springs, Va.
New Orleans, La.
Grand Rapids, Mich.
Chicago, III.

Colorado Springs, Colo.
Waikoloa, Hawaii Island
San Diego, Cal.
Birmingham, Ala.
Hot Springs, Va.
Washington, D.C.

IHETHIED BRANCH

BURNS, from page 2

Third, I mentioned civil and crimi-
nal litigation. One of our emphases is
to improve the coordination between
the two here in this building and in
the various offices of our U.S. at-
torneys.

Fourth, we are working very hard
at streamlining and improving our
budgetary process here. We have es-
tablished what we call our Depart-
mental Resources Board, which I
chair. The idea is to create our budget
with greater precision, with greater
understanding by our leadership,
understanding by the leaders of our
component parts. In other words, in
building a budget it is very easy to
fall into a habit of working off of the
prior year's numbers, to be arbitrary.
I must say, I think we did a very fine
job here this year, and we are looking
forward to improving the process for
next year.

Fifth is an increased emphasis on
personnel. We are establishing a per-
sonnel board, which I will chair, the
idea being to establish procedures for
encouraging the development of ca-
reer opportunities in the Department
of Justice. When you can concentrate
on career development and take a
guiding hand toward the movement
of people throughout the depart-
ment— provide upward mobility, in-
centives, and training — that is very
important. We want to place some
new emphasis on that. We are going
to do that to continue to build on a
really solid core of first-rate at-
torneys. 1 am a relarive newcomer to
government service; I celebrated my
first year in the department on Jan. 6.
I came here from 33 years in the pri-
vate practice of law. The thing that
astonished me, coming here with the
traditional, the usual biases and pre-
judgments about these things — what
astonished me was the enormous
quality of the people here and the tre-
mendous caliber of the lawyers here.
We want to keep working to improve
the training.

So a sixth area of management con-
cern is training. We do a lot of train-

ing here. We run a trial advocacy pro-
gram. We have another training
program in which we train lawyers
outside the Justice Department, law-
yers throughout the government. We
have a program called the Attorney
General's Advocacy Institute. Now
that is trial advocacy and appellate
advocacy, and we trained more than
1,600 of our 5,000 lawyers last year.
During the same time our Legal
Education Institute, which trains
lawyers outside the department,
trained roughly 5,000 of the 20,000
lawyers in other branches of govern-
ment. So training is very important
and we intend to continue emphasiz-
ing this.

vaccine bill he expressed some se-
rious reservations about that aspect
of the bill, but because the bill had
other good points in it, he signed it.
We think that the special masters
provision is a major defect in the bill.
We do not think that special masters
working under the supervision of
U.S. district court judges are the ap-
propriate vehicle for sorting out these
issues of entitlement in cases in
which youngsters sustained injuries
from the use of a vaccine. There are a
couple of reasons why that is not a
good idea. Reason one — this entitle-
ment program — would it be admin-
istered in some uniform fashion?
U.S. district court judges, who are

"The civil RICO statute . . . just adds to the burden of the
courts."

Deputy Attorney General Arnold I. Bums

We are going to be reorganizing
things to maximize efficiency, to
maximize cost reduction, to facilitate
the ease of administration of the de-
partment. So we are working on
some reorganization changes which
we intend to submit to the Congress
before very much time lapses. But I
can't tell you more about it yet. It is
premature.

Would you comment on the role of
special masters under the National
Childhood Vaccine Injury Act?

When the President signed the

judges and whose function ought to
be limited to the adjudication of
cases, are really being asked to ad-
minister a program. It raises all sorts
of problems. The second thing that is
wrong with it is that our judges are
today overburdened and overworked
in discharging the responsibilities
they have in the adjudicative area.
This vaccine bill will require funding,
and when we go to the Congress for
the funding, I think we will ask for

See BURNS, page 5

BURNS, from page 4
some amendments that will address
the issue of the role of special masters
under this bill.

You have made comments in the
past about the role of special masters
in other kinds of cases, suggesting
that perhaps they have been over-
jsed.

The judicial function is an ad-
udicative function. It is one thing to
\ay, "\ appoint a special master to as-
:ertain certain facts," such as
vhether this microphone has been
)roperly activated and we are truly
low recording this interview. I want
finding of fact, and that might be in
given case an appropriate role for a
Piaster. But the judge appoints a
-laster to supervise the activation of
11 microphones in the District of Co-
imbia for the ensuing year at every
iterview that should ever take place,
hen we have constitutional issues
lat are implicated, we have serious
uestions raised, and the question is,
'ho is going to pay for that master?
le in the department are going to re-
st payment for masters who are reg-
lating the world, as opposed to
lasters who are ascertaining and ad-
dicating facts in aid of the U.S. dis-
ict court judge's adjudicative re-
)onsibility.

There are judicial procedures
hich we would avail ourselves of,
eluding the right to appeal judg-
ents or orders directing appoint-
ents of special masters. My exam-
e about microphones, of course, is
'perbole, but I can assure you that 1
n give you real-life examples that
e much more extreme than the one
at I invented on the spur of the mo-
?nt— for example, masters who are
3nitoring on a continual basis the
itude of helicopters flying over cer-
in lands for environmental pur-
'ses, masters who are running
isons and hospitals. And one could
on and on. There are examples
e could find that are worse than
? one I used.

Do you have any specific legisla-
e goals in the 100th Congress?
^ell, let's start with RICO. There

has been an awful lot written and
said about the civil RICO legislation.
I think there is an awfully wide con-
sensus that the civil RICO statutes
have been used in a manner far
beyond what Congress ever in-
tended.

This goes back to what I said earlier
about the special masters under the

BULLETIN OF THE 1^
FEDERAL COURTS ^X^

and because I don't think it is broken
down, I think we will indeed get leg-
islation in the 100th Congress. But if I
were to predict what it will be, I
would be either a knave or a fool.

As for other legislation, tort reform
remains an important priority for us.
We in the Department of Justice took
a leading role in tort reform. We had

"[T]he Department of Justice . . . will be supportive of
legislation that restricts the availability of the civil RICO
statute to the private bar."

vaccine act superintending and ad-
ministering what is essentially an en-
titlement program. The civil RICO
statute, like that program, just adds
to the burden of the courts and adds
to the burden of the judges. That is
why they are groaning, when they
were overworked and overburdened
to start with. Civil RICO has been
used as a remedy in ordinary cases
involving antitrust, securities law,
and common-law fraud, to cite but
three examples. It's been used in
cases where one could bring a suit
sounding in antitrust, or in any one
of the other areas I mentioned, and
get adequate relief. It has gotten to
the point now where if you don't
throw in a civil RICO count you
could be guilty of malpractice. Ordi-
nary citizens, decent, law-abiding,
honest citizens— bankers, mer-
chants, insurance company agents

are sued under the civil RICO stat-
ute. Their friends and neighbors read
in the newspaper that they have been
sued as racketeers, and that is a ter-
rible thing.

So I think there is a wide con-
sensus. That wide consensus did not
break down in the last Congress. My
explanation for what some see as a
breakdown is that while everyone
agreed that some rectification was re-
quired, they could not agree on the
way to do it. From our point of view
in the Department of Justice, we will
be supportive of legislation that
restricts the availabihty of the civil
RICO statute to the private bar. And
because there is that wide consensus.

an important working group on tort
reform led by Assistant Attorney
General Richard Willard. The at-
torney general, the deputy attorney
general. Assistant Attorney General
Willard, and others in the depart-
ment crisscrossed the country speak-
ing to groups about tort reform. We
are hopeful that we will see tort re-
form. I hope that we will see legisla-
tion not only in Congress, but also in
state legislatures around the country,
addressing this important issue.

"I hope that we will
see [tort reform] legisla-
tion not only in Congress,
but also in state legisla-
tures around the coun-
try/'

I think that the administration will
be seeking to reintroduce our anti-
trust reform package. I think you will
see essentially the same kinds of
things that we asked for in the last
session. We will seek to codify our
merger guidelines. We will probably
suggest a change in law regarding in-
terlocking directorates. We will have
some antitrust relief suggestions for
some trade imbalance problems. The
Sherman Act was passed in 1890; the
Clayton Act was passed in 1914. That
is a long time ago, and the world has
changed. Competition in the world

See BURNS, page 6

theTHIEDh!ANCH

200

**••••

•*•*••

Uarch 1787: Under the 1783 peace
treaty, the United States had
agreed that Congress would recom-
mend "earnestly" that state legisla-
tures "provide for the restituhon of
all estates, rights, and property"
confiscated from British subjects
and noncombatant loyalists. The
British government complained of
bad faith on the part of the states in
implementing this and other provi-
sions, but all Congress could do
when it responded in March 1787
was remind the states that the
treaty was "part of the law of the
land" and urge that they observe it.
Congress's inabihty to act more
vigorously under the Articles of
Confederahon was also reflected in
the treatment of the many cases
that foreign and domestic ship-
owners filed to regain vessels that
American forces seized during the
Revoluhon. State courts usually up-
held the captures, and disap-
pointed htigants appealed to Con-
gress.

Congress heard the appeals
through a standing committee unHl
1780, when it established the three-
judge United States Court of Ap-
peals in Cases of Capture. Al-
though the Articles of Confedera-
tion authorized Congress to
establish rules for deciding capture
and prize cases, neither it nor the
court had authority to compel com-
pliance with their decisions. By
1787, the court had been under-
mined by the widespread refusal to
honor many of its mandates.

BICENTENNIAI. OF

Calendar

Mar. 2-7 Seminar for Newly Appointed

Bankruptcy Judges
Mar. 17-18 Judicial Conference of the

United States
Mar. 23-24 Staff Safety Training
Mar. 25-27 Seminar for Magistrates of

the First, Second, Third, Fourth,

and D.C. Circuits

BURNS, from page 5

has changed, and what we are look-
ing to do is to bring the antitrust laws
into the modern age and recognize
that we are dealing now not with
competition between Virginia and
Maryland, but with global competi-
tion, global forces.

We will also reintroduce several
important criminal reform bills. As in
the last Congress, we will support ex-
clusionary rule reform and habeas
corpus reform. We will also press for
the death penalty for certain terrorist
crimes.

How does the department view
the work of the U.S. Sentencing
Commission, particularly as it re-
lates to capital sentencing?

The Sentencing Commission, as
you know, was established by an act
of Congress and charged with the re-
sponsibility of coming up with new
sentencing guidelines across the uni-
verse of crimes prescribed in all of
our statutes, particularly title 18 of
the U.S. Code. The Sentencing Com-
mission has held many, many hear-
ings. I think they should be compli-
mented because there have been
open hearings — they have solicited
all kinds of opinion. We believe that
the guidelines the commission is pro-
ducing will go a long way towards re-
ducing unwarranted sentence dis-
parity that all too often prevails
today.

During the course of their delibera-
tions they asked the department
what its view was as to whether or
not the legislation setting up the Sen-
tencing Commission authorized it to
address the issue of guidelines for
capital offenses. So we have given
our opinion that the legislation did
indeed authorize the commission to
consider guidelines for all offenses
and all punishments, including the
death penalty. This is not to say that
the Sentencing Commission can rec-
ommend capital punishment for
crime a, b, c, d, e, or f. Congress has
already prescribed the death penalty
for many crimes on the statute books,
and the only question here has to do
not with the prescription of the

penalty but with guidelines to
provide for the constitutional meth-
odology of carrying out such a
penalty consistent with judicial deci-
sions. This is something that the Sen-
tencing Commission is charged with
doing — not the Department of Jus-
tice, not the attorney general or the
deputy attorney general. Now what
the Sentencing Commission is going
to do is something yet to be decided
by the Sentencing Commission, so
we will wait and see.

Is there any way to accelerate the
judicial appointment process?

First, I think that sitting judges,
when they decide to retire or to take
senior status, ought to let the Presi-
dent know sooner rather than later.
For example, a judge could advise
the President, "Prospectively, 1 am
planning to step down next January"
(or a year from January, a year from
February) "on my 65th birthday" (my
70th birthday, whatever the case may
be), so that we are alerted as soon as
we can be.

Second, 1 think we have a job here
in the Justice Department of persuad-

See BURNS, page 7

Positions Available

Supervisory Staff Attorney, 8th Cir.

Salary starting from $38,700 to $45,700,
depending on experience. Must train
new staff law clerks, serve as resource
on substantive issues, and edit legal
memoranda. Applicants should have
progressively responsible legal work ex-
perience. Send resume, law school class
rank, and writing sample by Mar. 31 to
Senior Staff Attorney, U.S. Court of Ap-
peals for the 8th Circuit, 1114 Market
St., Rm. 625A, St. Louis, MO 63101.

Motions Practice Attorney, 8th Cir.

Salary $32,500. Two positions in new
staff unit to assist the court with sub-
stantive motion practice. Applicants
must be able to communicate well in
person and on telephone, work inde-
pendently, and meet deadlines. Send
resume and writing sample by Mar. 31
to Clerk of Court, U.S. Court of Appeals
for the 8th Circuit, 1114 Market St., Rm.
511, St, Louis, MO 63101.
EQUAL OPPORTUNITY EMPLOYERS

BULLETIN OF THE ^
FEDERAL COURTS ^i**^

BURNS, from page 6

ing the members of Congress to take
this so very seriously and give this
higher priority than it has had before
and to provide us with cool, compe-
tent, qualified candidates so that we
have people in the pipeline and in
the hopper.

Third, again without sacrificing ac-
curacy, we would hope to see if the
FBI background checks could be
speeded up. We hope that the Amer-
can Bar Association procedure could
3e speeded up. So we are hopeful
hat we will proceed apace with the
'resident's nomination of new
udges after the appropriate
screening process.

Do you have forms like the Senate
udiciary Committee has, which can-
lidates are required to fill out?

Yes we do. We have a question-
laire.

Do you think the ABA screening is
elpful? Some attorneys general
ave done away with it.

It is our view on balance that it is
ery helpful and that with some
hanges and modifications in the

process, which we are talking with
them about, it could be even more
helpful. Yes, we do think it is good.

Do you have anything else you
want to add?

Just that I want to thank you for
coming and spending this time with
me. It is a joy to share some thoughts
with you about the Department of
Justice. I also want to thank you and
your readers for all that you do to
help improve the administration of
justice in this nation. ■

Personnel

THE BOARD OF THE
FEDERAL JUDICIAL CENTER

Chairman

The Chief Justice
of the United States

Judge Daniel M, Friedman

United States Court of Appeals

for the Federal Circuit

Judge AJvin B. Rubin

United States Court of Appeals

for the Fifth Circuit

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 Director

Nominations

Rena Raggi, U.S. District Judge,

E.D.N.Y.,Jan. 20
Michael S. Kanne, U.S. Circuit Judge 7th

Cir., Feb. 2
Edward Leavy, U.S. Circuit Judge 9th

Cir., Feb. 2
David Bryan Sentelle, U.S. Circuit Judge

D.C. Cir., Feb. 2
Bernard H. Siegan, U.S. Circuit Judge,

9th Cir., Feb. 2
Richard J. Daronco, U.S. District Judge

S.D.N. Y., Feb. 2
Ronald S. W. Lew, U.S. District Judge

CD. Cal., Feb. 2
Malcolm F. Marsh, U.S. District Judge D

Or., Feb. 2
Layn R. Phillips, U.S. District Judge,

W.D. Okla., Feb. 2
James B. Zagel, U.S. District Judge, N D

111., Feb. 2
Haldane R. Mayer, U.S. Circuit Judge,

Fed. Cir., Feb. 3
James H. Alesia, U.S. District Judge

N.D. 111., Feb. 3
David S. Doty, U.S. District Judge, D.

Minn., Feb. 5
Robert N. Miller, U.S. District Judge, D.
Colo., Feb. 5

Appointments

James L. Graham, U.S. District Judge,

S.D. Ohio, Nov. 15
Bruce M. Selya, U.S. Circuit Judge, 1st

Cir., Nov. 24
Diarmuid F. O'Scannlain, U.S. Circuit

Judge, 9th Cir., Nov. 25
Richard B. McQuade, Jr., U.S. District

Judge, N.D. Ohio, Dec. 1
Frederic N. Smalkin, U.S. District Judge,

D. Md., Dec. 2
Joseph F. Anderson, Jr., U.S. District

Judge, D.S.C., Dec. 11

Elevations

Gene E. Brooks, Chief Judge, S.D Ind

Jan. 1
Odell Horton, Chief Judge, W.D. Tenn

Jan. 1
Robert W. Porter, Chief Judge, N.D.

Tex., Jan. 1
Santiago E. Campos, Chief Judge,

D.N.M., Feb. 5

Senior Status

Phillip B. Baldwin, U.S. Circuit Judge,

Fed. Cir., Nov. 24
Donald S. Voorhees, U.S. District Judge,

W. D. Wash., Nov. 30
Robert M. McRae, Jr., U.S. District Judge

W.D. Tenn., Dec. 31
Howard C. Bratton, Chief Judge

D.N.M.,Feb. 5 ^

Resignations

James R. Miller, Jr., U.S. District Judge,

D. Md., Dec. 1
Herbert J. Stern, U.S. District Judge,

D.N.J.,Jan. 4

Noteworthy

Bankruptcy appeals not referrable to
magistrates. Federal district courts lack
power to refer appeals from bankruptcy
courts to magistrates, the Seventh Circuit
has ruled (In re Elcona Homes Corp., No.
86-1541, Jan. 23, 1987). In 1984 legislation.
Congress did not reenact a specific pro-
hibition against referrals of bankruptcy
court appeals to magistrates. Nonethe-
less, because conditions required for ap-
peals to a panel of bankruptcy judges are
carefully specified, but no provision for
courts' referring appeals to magistrates is
made, the court rejected the contention
that Congress intended by omitting the
prohibition to allow district courts to
make such referrals.

S.D.N.Y. orientation program. Chief
Judge Charies L. Brieant has announced
the second annual orientation program
for attorneys practicing in the S.D.N.Y.,
to be held Mar. 7 in New York City. The
program will feature the clerk and deputy
clerks of the court, the dish-ict executive,
other court officials, and attorneys.
Topics will include filing a civil case,
judgments and taxation of costs, orders
and appeals, use of the audio-video unit,
the Interpreters Act, records mainte-
nance, and domestic and foreign service.
For more information, call 212/791-9326.

theTHIRDbranch

SOURCE, from page 3

stitution. West, 1987.

Louis, Martin B. "Allocating Adjudica-
tive Decision Making Authority Between
the Trial and Appellate Levels: A Unified
View of the Scope of Review, the Judge/
Jury Question, and Procedural Discre-
tion." 64 North Carolina L. Rev. 993 (1986).

Monkmeyer, Susan R. "The Decision
to Appeal a Criminal Conviction: Bridg-
ing the Gap Between the Obligations of
Trial and Appellate Counsel." 1986
Wisconsin L. Rev. 399.

Murchison, Brian C. "Moments of Si-
lence in Administrative Law: Notes on Ju-

dicial Method in the Deregulation
Cases." 60 Tulane L. Rev. 697 (1986).

1986 Grand and Petit Juror Service in
United States District Courts. Administra-
Hve Office of the U.S. Courts, 1986.

Resnik, Judith. "The Declining Faith in
the Adversary System." 15 Litigation 3
(Fall 1986).

Special Committee on Science and
Law. "An Analysis of Proposed Changes
in Substantive and Procedural Law in Re-
sponse to Perceived Difficulties in Estab-
lishing Whether or Not Causation Exists
in Mass Toxic Tort Litigation." 41 Record
of the Association of the Bar of the City of New

Yorfc 905 (1986).

Stathis, Stephen W. "Executive Coop-
eration: Presidential Recognition of the
Investigative Authority of Congress and
the Courts." 3 /. of Law & Politics 183
(1986).

Winters, Richard H. "An Intercircuit
Panel of the United States Courts of Ap-
peals: The Costs of Structural Change."
70 judicature 31 (June/July 1986).

Zimring, Franklin E., & Hawkins, Gor-
don. "A Punishment in Search of a
Crime: Standards for Capital Punishment
in the Law of Criminal Homicide." 46
Maryland L. Rev. 115 (1986).

BULLETIN OF THE FEDERAL COURTS

theTHIRDbranch

First
Class
Mail

Vol. 19 No. 3 March 1987

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

Official Business

Postage and

fees paid

United States

Courts

U.S. GOVERNMENT PRINTING OFFICE 1987-491-221-40011

3^3/3

BULLETIN OF THE FEDERAL COURTS

THETH]

^ocs

-Boe-

BEANCH

VOLUME 19
NUMBER 4
APRIL 1987

Levin to Retire in July After Decade as
FJC Director; Search Committee Appointed

Professor A. Leo Levin, director of
the Federal Judicial Center, has an-
nounced that he will retire on July 31.
At the time of his re-
tirement. Professor
Levin will have
served as FJC direc-
tor for more than a
decade — over half of
he Center's lifetime.

Professor Levin is
he fourth director of
he Center and was
he first nonjudge to
>e selected for the
• osition. He was
•receded by Judge
Valter E. Hoffman,
Jdge Alfred P. Mur-
ah, and Justice Tom
:. Clark.

In his letter of resignation to the
hief Justice, Professor Levin noted
lat he has been asked to be the first

A. Leo Levin

incumbent of a new chair at the Uni-
versity of Pennsylvania Law School.
He stated that "[SJerving in my pres-
ent position has been
an enriching and en-
joyable experience.
This has been true in
large measui:t be-
cause of^tlTf«'^^ssist-
ance.pioMded by so
ma^Viy 'judg«e^i^and
■^ other rnexpBers of the
fede^^^jud^^i^f^ys-
tem, in^Jiing the
Center's most im-
pressive and dedi-
cate,^ staff. Most of
raH^/f am deeply in-
% debt^to the mem-
■'- be#of the Center's

Board, who h^e offered both help
and friendship .... I believe that the
Center is poised, under your leader-
See LEVIN, page 5

^\\

Solicitor General Charles Fried Describes Role
n Approval of Appeals, Supreme Court Cases

Solicitor General Charles Fried re-
vived his A.B. from Princeton Univer-
ty, bachelor's and master's degrees from
Oxford University, and his LL.B. from
olumbia University. He clerked for Jus-
:e John M. Harlan in 1960, then joined
e Harvard Law School faculty, where he
ught contracts and legal philosophy. He
's served as a consultant to the Treasury
epartment, the White House Office of
^licy Development, the Department of
■ansportation, and the Justice Depart-
^nt. He was appointed deputy solicitor
neral and counselor to the solicitor gen-
ii in 2985, and was named solicitor
neral later the same year.

The solicitor general has been de-
ribed as the representative of the
vernment in the Supreme Court.

Do you take on other assignments,
administrative or otherwise?

By our statutes and regulations we
actually have another role which is
very time-consuming: We have to ap-
prove all of the government's appeals
in any court and all of its amicus fil-
ings in any appellate court.

Including 93 U.S. attorneys and
their cases?

Yes, but just appeals, not their
original filings— any appeal that the
government takes, and that means
any government agency, except
some of the independent agencies
which have independent litigating
authority. In general, if the federal
government loses a case, it cannot
appeal unless my office— and that
See FRIED, page 6

Judicial Conference
Elects Judges Kennedy,
O'Kelley to FJC Board

Judges Anthony M. Kennedy (9th
Cir.) and William Clark O'Kelley
(N.D. Ga.) have been elected by the
Judicial Con-
ference of
the U.S. to
serve as
members of
the Board of
the Federal
Judicial Cen-
ter. They re-
place Judge
Daniel M.
Friedman
(Fed. Cir.)

and Judge Anthony M. Kennedy
Howard C. Bratton (D.N.M.), respec-
tively, each of whom has served as a
Board member since March 1983. By
statute. Board members serve four-
year terms and cannot be re-elected.
Judge Kennedy, a native Califor-
nian, was appointed U.S. circuit
judge for the Ninth Circuit in 1975.
He received
a B.A. de-
gree from
Stanford
University,
an LL.B.
from Har-
vard, and at-
tended the
London
School of
Economics.
Judge Ken-
nedy is a William C. O'Kelley
member of the Judicial Conference
Advisory Committee on Codes of
Conduct and is chairman of the Com-
mittee on Pacific Territories.

Judge O'Kelley has been a district
judge since 1970. He has served on

See BOARD, page 3

2 A . ^

theTHIEDbeanch

Chief Justice Speaks on Bicentennial, Justice Scalia
on Federal Court System, at ABA Meeting

Chief Justice William H. Rehnquist
addressed the American Bar Associa-
tion's recent midyear meeting, re-
minding members of the legal profes-
sion of their obligations "to reflect on
and speak about the significance" of
the 200th anniversary of the signing
of the U.S. Constitution.

In his first address to the ABA
since becoming Chief Justice, he ex-
plained that he was not making a
"state of the judiciary" report, but
rather had elected to talk about the
importance of observing the bicen-
tennial.

The Chief Justice noted that "law-
yers played a large part in the draft-
ing of the Constitution and they have
played an even larger part in its inter-
pretation."

He stressed the importance of ap-
preciating the value of "the flexibility

of the substantive provisions" in the
Constitution, which empower the
courts to invalidate laws that do not
conform to the Constitution, a pro-
tection that did not exist in England
or in any European country 200 years
ago. The important point is, he said,
that the drafters of our Constitution
recognized the importance of giving
the judicial branch of our govern-
ment "the final say as to how [the
Constitution] should be interpreted."
What we have today is a "finely
tuned mechanism by which constitu-
tional law is declared, interpreted,
and on occasion changed, which is
perhaps the greatest gift of the
framers. . . . They realized that an in-
dependent judiciary was essential to
give life to the conditional guaran-
tees, and they provided for one. Dur-
See REHNQUIST, page 4

ABA House Favors Higher Diversity Jurisdiction
Threshold; Approves Tort Law Resolutions

The following matters of interest to
the federal judiciary were considered
by the ABA House of Delegates dur-
ing its recent midyear meeting:

Diversity jurisdiction. The House
of Delegates approved a resolution
recommending that 28 U.S.C. § 1332
be amended to provide that in diver-
sity of citizenship cases the value of

toeTHIRDbraisich

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.

Co-editors

the amount in controversy must ex-
ceed $50,000. In 1789 the amount was
set at $500; it was increased to $2,000
in 1887, to $3,000 in 1911, and to
$10,000 in 1958. Proponents of abol-
ishing diversity argued unsuc-
cessfully that the amount should be
much higher than $50,000, since in-
flation has made even the $50,000
amount unrealistic.

Tort reform. On Feb. 11, a 14-
member commission of the ABA, af-
ter months of study, released an ex-
tensive report with 20 recommenda-
tions to improve the tort system in
this country.

The House of Delegates accepted
18 of the commission's recommenda-
tions. The delegates voted against
ceilings on the amount of money that
tort-plaintiffs may recover for "pain
and suffering," with a statement that
"there should be no ceilings on pain
and suffering damages, but instead
. . . the courts should make greater

200

• •••••

■k -k -k ir -k it-

April 1787: Long a student of politi-
cal science, James Madison readied
himself for May and the Constitu-
tional Convention by delving into
works of political theory and histo-
ries of ancient and modern con-
federacies. Much of his reading
came from books sent to him by his
close friend Thomas Jefferson, then
the American ambassador to
France.

In April 1787, while in New York
as a member of Congress,
Madison's research bore fruit in an
eleven-point memorandum on the
"Vices of the Political System of the
United States," prepared mainly
for those likely to be influential at
the Convention. "A sanction,"he
wrote, "is essential to the idea of
law, as coercion is to that of Gov-
ernment. The federal system, being
destitute of both, wants the great
vital principles of a Political Consti-
tution."

A letter the same month to Wash-
ington anticipated many of the pro-
posals Madison would put forth in
Philadelphia. He told Washington,
for example, that the "national su-
premacy ought also to be extended
... to the Judiciary department. . . .
It seems at least necessary that the
oaths of the Judges should include
a fidelity to the general as well as
local constitution, and that an ap-
peal should lie to some National tri-
bunal in all cases to which for-
eigners or inhabitants of other
States may be parties. The admi-
ralty jurisdiction seems to fall en-
tirely within the purview of the na-
tional Government.

BICENltNNIAI- OF

use of the power of remittitur or ad-
ditur with reference to verdicts which
are either so excessive or inadequate
as to be clearly disproportionate tc
community expectations." [See the
report on S. 426, which would cap
such awards, on p. 9.] The delegates
See ABA, page '

BULLETIN OF THE /fflK
FEDERAL COURTS ^1^

FJC Reports on Two
Unusual Calendaring
Practices in E.D.N.C.

The Center recently published
Calendaring Practices of the Eastern
District of North Carolina, a research
report by Susan M. Olson, formerly
a judicial fellow in the Center's Re-
search Division.

The report describes two unusual
calendaring procedures used by the
Eastern District of North Carolina.
The first involves civil cases, which
are assigned randomly to the
judges of the court who then travel
among the court's divisions to try
the cases. The second procedure in-
volves calendaring of criminal
cases, which are assigned for sev-
eral consecutive months to a team
of one judge and magistrate, who
remain responsible for the cases
until final disposition.

The court has adopted these pro-
cedures in the effort to achieve sev-
eral goals: increasing the court's ac-
cessibility to the public, avoiding
bias in decision making, and, more
generally, ensuring sound and ex-
peditious decision making. On the
basis of interviews with judges,
magistrates, clerks, and attorneys
pracHcing in the district, the author
discusses the essential features of
the procedures and assesses their
adaptability to other district courts.
Copies of the report can be ob-
tained from Information Services,
1520 H Street, N.W., Washington,'
DC 20005. Please enclose a self-ad-
dressed mailing label, preferably
franked (5 oz.), but do not send an
envelope.

3ARD, from page 1

e Judicial Conference Committee
» the Administration of the Crimi-
il Law, and currently is a member
the Advisory Committee on Crimi-
1 Rules. He was appointed to a
ven-year term as a judge on the
'^- Foreign Intelligence Sur-
illance Court in May 1980. For
■ee years, he was the district repre-
itative to the Judicial Conference
m the Eleventh Circuit. ■

fudge Gignoux Selected as Recipient ofDevitt
Distinguished Service to Justice Award

Judge Edward T. Gignoux (D.
Me.), a federal judge for almost 30
years, has been chosen to receive this
year's Edward J. Devitt Distin-
guished Service to
Justice Award.

Judge Gignoux has
for many years been
associated with the
work of improving
judicial administra-
tion in the federal
court system, mainly
through the Judicial
Conference of the
United States. The
judge has also made
significant contribu-
tions to the work of
state and national
bar associations and
is a member of the council of the
American Law Institute.

Since joining the federal court sys-
tem. Judge Gignoux has been a mem-
ber of numerous Judicial Conference

Edward T. Gignoux

committees, whose work covered
personnel, the jury system, bank-
ruptcy, ethics, judicial conduct, judi-
cial trial practice and technique,
federal jurisdiction,
and court admin-
istration. Currently
the judge is chair-
man of the Judicial
Conference Commit-
tee on Rules of Prac-
tice and Procedure,
which, with its ad-
junct committees, is
responsible for draft-
ing all the national
federal rules used in
the federal courts —
appellate, civil, crim-
inal, and bank-
ruptcy. The commit-
tee's aggregate membership is now
53. In addition. Judge Gignoux was
for sb< years the First Circuit's district

See GIGNOUX, page 10

LEGISLATION

The following is a listing of some
bills of interest to the judiciary that
have been introduced in the 100th
Congress. Committee action has not
yet been taken on most of them

• H.R. 742. Clarifies that the Su-
preme Court's amendment to Fed. R.
Grim. P. 35(b) continues in effect un-
til section 215(b) of the Comprehen-
sive Crime Control Act of 1984 takes
effect. The Supreme Court, pursuant
to the Rules Enabling Act, on Apr.
29, 1985, ordered an amendment
transmitted to Congress resolving an
uncertainty as to whether a motion
filed within the 120 days permitted
by the rule also had to be ruled upon
within that period. The Court's
amendment required that the sen-
tencing court determine a rule 35(b)

motion "within a reasonable time"
after the motion is filed. The Court's
order making the amendment was to
have been effective only until Nov. 1,
1986, when section 215(b) was to
have gone into effect. (Section 215(b)
abolishes both the defendant's ability
to move to reduce sentence and the
court's authority, sua sponte, to re-
duce sentence.) However, Congress
See LEGISLATION, page 9

Law Day— U.S.A.

May 1 is Law Day— U.S.A. This
year's theme is "We the People."
Law Day was conceived in 1957
by the American Bar Association
and established by President
Eisenhower by presidential procla-
mation in 1958. In 1961, May 1 was
set aside for the observance of Law
Day by joint resolution of Con-
gress, and it continues to be presi-
dentially proclaimed each year.

4 ^ , -

theTHIRDbeanch

Larry Stoorza Leaves FJC Systems Division to Head
AG's Automation and Statistics Operations

Mr. Stoorza currently serves as di-
rector of the FJC's Innovations and
Systems Development Division. Both
the Center and the AO have utilized
his exceptional services in the design
and, subsequently, the implementa-
tion of the new family of de-
centralized computer systems for ap-
pellate, district, and bankruptcy
courts. Mr. Stoorza served as deputy
director of the FJC's Systems Division
from 1976 to 1981. He became chief of
the AO's Systems Services Branch in
1981 and later became assistant direc-
tor of Management Systems and
Services. He rejoined the Center in
1986. His continued interest in the
successful automation of the courts
has benefitted both agencies, as well
as the federal judiciary.

AO Director L. Ralph Mecham has
announced the selection of Edwin L.
("Larry") Stoorza for the position of
assistant director for automation and
statistics.
Mr. Stoorza
was selected
from a large
number of
applicants
following a
c o m p r e -
hensive re-
c r u i t i n g
effort. Direc-
tor Mecham
cited Mr .
Stoorza' s

proven management talent, strong
technical skills, and knowledge of
federal court needs as important rea-
sons for his selection.

Larry Stoorza

See STOORZA, page 8

REHNQUIST, from page 2

ing this year we, as lawyers, should
be in the front ranks of those who are
celebrating this great event."

Justice Scalia, also appearing be-
fore this group for the first time since
taking office in September 1986,
talked about his perceptions of the
federal courts at the time he gradu-
ated from law school in 1960 and to-
day. Justice Scalia cited statistics to
support his statement that the federal
courts today — with double caseloads
and without a proportionate increase
in judgeships— are facing serious
problems that must be resolved if the
federal judiciary is to function as our
founding fathers intended.

The solutions, the Justice said, are
not to be found solely in an increase
in judgeships, in improved case proc-
essing procedures, or even in the
adoption of the proposed intercircuit
tribunal. Justice Scalia's suggestion to
the bar membership and Congress
was that they concentrate on mean-
ingful structural changes. He sug-
gested consideration be given to spe-

cialization through Article III
tribunals (such as a national Social
Security court); diversion of matters
such as freedom of information re-
quests from the courts to administra-
tive law judges (with appeal to the
federal courts only on issues of law
and then only if the administrative
law judge's decision is reversed by an
agency); and elimination of diversity
jurisdiction cases or, at a minimum, a
substantial increase in the amount in
controversy requirement.

He warned that if the trend in the
federal court system continues as it
already has for more than a quarter of
a century, it will create a "national-
ization of our legal system, ... a vast
judicial bureaucracy, and it will inev-
itably [bring to the federal bench less
than superior] personnel to

match The question is not

whether the federal courts should be
changed, but rather whether that
change, through inaction, will take
the form of continuing deterioration
or whether some structural alteration
will preserve the essence of a valu-
able institution."

Positions Available

Senior SUff Attorney, Ist Cir. Candi-
dates should have 5 years' legal experi-
ence, strong academic credentials, man-
agement experience, and experience
with appellate or federal courts. Salary
from $53,830 to upper 60s, depending
on experience and prior federal service,
if any. Send resume and references by
Apr. 13 to Dana H. Gallup, Circuit Ex-
ecutive, Rm. 1302, U.S. Post Office,
Boston, MA 02109.

U.S. Bankruptcy Judges. Five new
positions in the 11th Cir.: N.D. Ga. (2 at
Atlanta), S.D. Ga. (1 at Augusta), M.D.
Fla. (1 at Tampa, 1 at Orlando). Ap-
pointments will not be made to these
new positions until Congress appropri-
ates supplemental funds. Application
available from Norman E. ZoUer, Circuit
Executive, U.S. Court of Appeals, Elev-
enth Circuit, 56 Forsyth St., Atlanta GA
30303. Completed application should be
received by May 1.

♦ * ♦

Clerk, Bankruptcy Court (D.N.H.).

Salary $45,762 to $59,491. Requires min-
imum of 10 years' progressively respon-
sible administrative experience, at least
3 years in a position of substantial man-
agement responsibility. College and law
degrees may be partially substituted for
experience; law degree preferred. Sub-
mit resume or SF 171 by June 30, 1987,
to Hon. James E. Yacos, Judge, U.S.
Bankruptcy Court, Federal Bldg., 275
Chestnut St., Manchester, NH 03101.
» » »

Deputy Clerk (Automation Manage-
ment), Fed. Cir. Salary to $27,172. Re-
sponsible for overseeing development
and implementation of automated sys-
tems. Position open until filled. Mini-
mum 5 years' experience; B.A., Mas-
ters, or J.D. degrees may be considered
in relation to experience requirement.
Submit SF 171 and resume to Francis X.
Gindhart, Clerk, U.S. Court of Appeals
for the Federal Circuit, 717 Madison
Place, N.W., Washington, DC 20439.

EQUAL OPPORTUNITY
EMPLOYERS

[Copies of the addresses of Chief
Justice Rehnquist and Justice Scalia
are available in the FJC's Information
Services Office.] ■

BULLETIN OF THE Ktllx
FEDERAL COURTS ^Jc^

Personnel

Nominations

Morton I. Greenberg, U.S. Circuit Judge

3d Cir., Feb. 17
Joseph P. Stadtmueller, U.S. District

Judge, E.D. Wis., Mar. 3
Robert H. BelJ, U.S. District Judge, W.D.

Mich., Mar. 11

Elevations

Clarence A. Brimmer, Chief Judge, D.

Wyo., Jan. 17
Santiago E. Campos, Chief Judge

D.N.M., Feb. 5

Senior Status

Halbert O. Woodward, U.S. District

Judge, N.D. Tex., Dec. 30
Robert L. Carter, U.S. District Judge

S.D.N.Y., Dec. 31
Joseph P. Kinneary, U.S. District Judge,

S.D. Ohio, Dec. 31
fames E. Noland, U.S. District Judge,

S.D. Ind., Dec. 31
William E. Steckler, U.S. District Judge

S.D. Ind., Dec. 31

.EVIN, from page 1

hip, to reach new heights."
^ In a letter to Professor Levin, the
Ihief Justice wrote that he is "truly
addened" by the decision to retire as
JC director. "I know . . . that your
erformance as Director for ten years
as been truly outstanding, and that
ou have made a lasting contribution
) the work of the Center which will
)ng survive your tenure as Direc-
)r."

The Chief Justice has appointed a
'arch committee consisting of Judge
■ David Mazzone (D. Mass.), Chair,
dge John C. Godbold (11th Cir )
>d Chief Judge William S. Sessions
k'.D. Tex.) to assist in the selection
Professor Levin's successor. Judge
azzone is a current member of the
enter's Board and Judge Godbold
a Chief Judge Sessions are former
?mbers of the Board. Requests for
formation should be directed to
%e A. David Mazzone, U.S. Court
'use, Boston, MA 02109. ■

Judicial Conference Certifies Consideration of
Impeachment of Judge Hastings May Be Warranted

The Judicial Conference of the
United States has certified to the
Speaker of the House of Representa-
tives that "consideration of impeach-
ment may be warranted" in the mat-
ter of U.S. District Judge Alcee L.
Hastings (S.D. Fla.). The certificate
was signed by the Chief Justice on
March 17, 1987.

The Judicial Conference had before
it the Sept. 2, 1986, certification of the
Judicial Council of the Eleventh Cir-
cuit that Judge Hastings "has en-
gaged in conduct which might con-

Noteworthy

stitute grounds for impeachment."
The Conference also had before it the
report of the investigating committee
appointed by the chief judge of the
Eleventh Circuit and that commit-
tee's report, record, and exhibits, and
a statement and report prepared by
counsel for Judge Hastings filed with
the Judicial Conference in response
to the Conference's Sept. 17, 1986, in-
vitation to Judge Hastings to submit a
written response to the Eleventh Cir-
cuit's report (see The Third Branch,
November 1986, p. 12). |

Second Circuit issues report. Chief
Judge Wilfred Feinberg (2nd Cir.)
and Steven Flanders, circuit execu-
tive of the Second Circuit, have is-
sued the eleventh Annual Report of
the United States Courts for the Sec-
ond Circuit, covering the statistical
year ending June 30, 1986.

In 1986, the median processing
time for civil cases in the Second Cir-
cuit was 6.0 months, and for criminal
cases 5.5 months.

The district courts of the Second
Circuit reported a 1 percent decrease
in civil filings in 1986. The median
time from filing to disposition in civil
cases in the district courts of the cir-
cuit decreased by one month in 1986,
from nine months to eight. Criminal
case filings increased by 7.3 percent
in 1986.

The report notes that "the largest
source of regular business during the
year was implementation of the
Gramm-Rudman legislation."

Fifty-six misconduct complaints
were filed with the clerk of the court
of appeals pursuant to the Judicial
Councils Reform and Judicial Con-
duct and Disability Act. Thirteen
complaints were pending at the con-
clusion of the statistical year; no com-
plaints were certified by the chief

judge to a Committee on Judicial
Conduct during the statistical year.

Three large responsibilities fell to
the circuit executive's office for the
first time in 1986: implementation of
personal computer application
throughout the circuit, telephone
rental/purchase changeover, and nu-
merous actions for and on behalf of
the Judicial Council in connection
with Gramm-Rudman-Hollings.

New reporting requirement for
federal and state prosecutors. The
Electronic Communications Privacy
Act of 1986 became effective Jan. 20,
1987. The statute amends title III of
the Omnibus Crime Control and Safe
Streets Act of 1968 and results in a
new reporting requirement for
See NOTEWORTHY, page 10

Calendar

Apr. 9-10 Frontline Leadership Man-
agement/Supervisory Training II
Apr. 20-22 Fifth Circuit Judicial Con-
ference
Apr. 21-23 Regional Seminar for Proba-
tion and Pretrial Services Officers
Apr. 22-24 Workshop for Judges of the

Fourth Circuit
Apr. 23-24 Frontline Leadership Man-
agement/Supervisory Training I
Apr. 27-May 1 Orientation Seminar for
New Probation and Pretrial Serv-
ices Officers

■■/^A''<.

theTHIRDbfanch

FRIED, from page 1

means in the end, I, authorize it.

What happens is that a recommen-
dation for an appeal will be made to
us by the U.S. attorney or by the rele-
vant Utigating division, and then a
member of my staff will prepare an
analysis and a deputy will review it.
Then I will go over those memoranda
and reach a decision. Mainly, the de-
cision is favorable, although when
appeal recommendations are ap-
proved, they are sometimes ap-
proved with qualifications. We say,
"Don't make this argument," or
"Make this argument this way rather
than that way." We do that quite reg-
ularly. I think we are of some help to
the lawyers by giving them sugges-
tions and advice, and sometimes
really specific instructions, on how
the case is to be briefed in the appel-
late courts. And, of course, if they
want to go en banc they need our ap-
proval. At that stage we turn them
down more often. So, that's a lot of
work. It does not leave time for other
assignments.

A case comes to you through the
divisions in the Department?

Yes. It would usually come to me
through the divisions. Nevertheless,
someone in my office will go through
the whole file and I will study at least
my office's recommendation; if they
are in disagreement, I go through the
whole file myself.

How large a staff do you have?
There are 22 lawyers.
Do you try to read all the opinions
that come out of the circuits?

No. I read them if they are relevant
to some case that I have, but not oth-
erwise.

Do you confer with the White
House on what cases to appeal?

I never have conferred with the
White House. I think the system is
that if the White House had a com-
munication to make, that communi-
cation would be from the White
House counsel, to the counselor to
the Attorney General, and then to
me. That's what Rex Lee told me the

system was. But I have never heard
from the White House— directly or
indirectly. I have friends over there
and I have had contacts at social
lunches and engagements, but 1 have
never had any business dealings with
the White House at all. For a different
relation, see the accounts of White

Charles Fried

House involvements in the solicitor
general's positions in Shelley v.
Kraemer, 100 Harv. L. Rev. 818-819
(1987), and Regents v. Bakke in Griffin
Bell's Taking Care of the Law.

What is your working relationship
with Attorney General Meese? Do
you arrive at a position to be taken
on a given issue in a collegial way
with his staff and your staff?

The relationship reflects the sort of
man that he is and the sort of person
I am. He is very interested in legal
questions. He reads a lot. He likes to
think about legal issues, and so do I.
He enjoys conversation and give and
take in discussion. In the course of a
week, there is a morning staff meet-
ing for all of his senior staff where
things of interest are discussed.
There is also a much smaller weekly

luncheon where things of interest are
discussed. He also has had con-
ferences involving the leadership of
the Department and outside aca-
demic speakers on issues of interest
to the Department. These con-
ferences have sometimes been week-
end conferences where views are dis-
cussed. So there is a great deal of give
and take. During that give and take,
he certainly indicates his opinions
about things, but because he is such
an open and conversational person it
is very clear that those expressions of
opinion are just that— expressions of
opinion.

The actual formal decision-making
process is one which comes up from
the divisions to me, and each person
makes a decision. For example, the
head of the Civil Division would
make a formal recommendation
which he would sign saying do this
or do that; that would come to me,
and I would study it and reach a deci-
sion. In the formal chain of command
if somebody doesn't like my deci-
sion, they have the opportunity to
carry an appeal to the Attorney Gen-
eral, because the statute indicates
clearly that I am his subordinate, and
he can then overrule my decision. So,
he doesn't operate by giving me in
structions to do things. He has,
hope, confidence in my judgmen
and he expects me to exercise tha
judgment, subject to being over
ruled; and that's exactly as it shouU
be. The fact that he can overrule mi
is not anything that I consider threat
ening or disagreeable. I think, in fad
it is a very important protection, be
cause it would be quite wrong for m
to have the final say in an ultimate k
gal sense, and yet it's very importar
for me to have the say that I do hav
by reaching an independent conch
sion which then can be overruled. S
that's the formal system.

Each administration has specii
interests in a given area. Do you ti
to make selections on the cases th
you want to argue at the Supren

See FRIED, page

FRIED, from page 6

Court level, concentrating on certain
issues?

Certainly that is an important ele-
ment in deciding what cases to ask
the Supreme Court to take. You have
to have some criteria. Fortunately,
the Supreme Court has its rules and
they furnish a pretty fine filter which

So there's not a problem. We just file
it and there it is. We do not need
leave to file an amicus brief.

How about leave to participate in
oral argument?

Argument is another thing because
generally— almost invariably— you
need to get time ceded by one of the
parties, and the parties sometimes
are not ready to give up their time.

"We have to authorize every filing of an amicus brief in
an appellate court . . . including a state appellate court."

gets an awful lot of the "dead cats"
out of there. In terms of what's left
and then deciding whether, among
the cases which meet the Supreme
Court's stringent criteria, a particular
case is worth taking— the fact that the
issue is one of concern to the admin-
istration— is, of course, an important
factor. Always has been and always
will be.

How do you arrive at a decision on
filing amicus curiae briefs?

We have to authorize every filing
Df an amicus brief in an appellate
:ourt anywhere in the country, in-
-luding a state appellate court, if we
eel that should be done. The initial
mpetus to file would come from
iome part of the government that
lad an interest in the case, and 1
vould then have to authorize it. In
Supreme Court cases, we would not
inly authorize it, we would actually
'rief and then argue the case.

Do you foresee going out into the
ederal courts of appeals to argue?

Occasionally one of our lawyers
light argue an appeal in the courts
f appeals, but that would be per-
aps a younger lawyer who may
eed a little practice. I don't argue in
le courts of appeals, because we
ave enough to do here.
How many of the amicus briefs
'at you have filed in the Supreme
ourt have been granted?
By a Supreme Court rule, every
nicus brief that we file gets granted.

Even when they are, the Court may
not want to allow divided argument.
Generally they do. Sometimes they
don't.

How do you feel about split argu-
ments, if you have, for example, a
total of 30 minutes?

1 think you can get quite a lot said
in 10 minutes. I have had some very
good 10-minute arguments.

Were you litigating before you
came here?

The first case I ever argued I ar-
gued in the Supreme Court, as a dep-
uty, in February 1985 at the age of 50.

■ . 7

BULLETIN OF THE /KtlK
FEDERAL COURTS ^P^

the Court to do that. This and other
cases were seen as evidence that you
had "politicized" the solicitor gen-
eral's office. Recent press reports im-
ply that you are now being more
low-key in how far you are asking
the Court to go in cases where you
are participating as an amicus. Is this
true?

The press loves to find trends and
changes and so on. As far as I am
concerned, I have not consciously
adopted any different stance at all.
The cases one goes into are a function
of what's up there. The notion of pol-
iticizing the office is extremely ill-de-
fined, and, if properly defined, is un-
founded. If what "politicizing" the
office means is using the office or the
briefs for some kind of partisan politi-
cal purposes, that's completely false.
If what it means is that I have pointed
out the proper direcrion which the
law— constitutional law— and so on
should take, then of course that is
quite true. But then that's always
been true. There has never been a so-
licitor general who was mindless
enough not to have a view about the
proper direction for the development
of consriturional and other parts of
the law, and that is something which

"The first case I ever argued
Court."

. . . I argued in the Supreme

Do you have any pending state
cases now?

I think we have one involving polio
vaccine in Kansas. I think we've got a
vaccine case in Ohio, and I think
we've got a product liability case in
California pending. There may be
some others which I can't recall.

How many cases have you argued
in the Supreme Court?
1 have argued 14 cases.
You asked the Court to overrule
Roe V. Wade in Thomburgh v. Ameri-
can College of Obstetricians &
Gynecologists, a case in which none
of the parties in the case had asked

we seek to express in our filings. If
that is politicization of the office,
then it is politicized. But I don't think
there is anything the least bit new
about it.

I think by and large the politiciza-
tion claim comes from those who
don't agree with the substantive
posirions. When Solicitor General
Cox argued in the reapportionment
cases, the usual suspects never said
that he was politicizing the office,
even though there was not a direct
federal interest in the matter. I sus-

See FRIED, page 8

THETEilRDBFANCH

FRIED, from page 7

pect that's because they agreed with
his substantive position. Philip El-
man writes: "Truman's Gallup poll
ratings at that time were very low. . . .
Tom Clark was Attorney General,
and both he and Perlman were politi-
cal animals, very much aware of the

Negro vote I don't know exactly

what happened. Probably Tom Clark
made the decision [to file in Shelley v.
Kraemer] after checking with Tru-
man." 100 Harv. L. Rev. 818 (1987).
And Griffin Bell suggests that the so-
licitor general's position in the Bakke
case was in part directed by Vice
President Mondale. That's a kind of
politicization I have never experi-
enced or participated in.

What do you think of the latest
law school graduates?

I am heartened by the quality of
the graduates one sees. They are very
excellent people, whom I enjoy inter-
viewing. We have no dearth of appli-
cants. We don't have any vacancies,

Charles Fried

but we have wonderful applicants. I
am less encouraged by the writing
that I see appearing in the law re-
views.

They aren't good writers?

I don't mean the quality of the
prose. The contents trouble me a
bit. ■

Final Hearings Held on Revised Guidelines

Members of the Judicial Con-
ference Committee on the Admin-
istration of the Probation System, as
well as federal defenders, U.S. pro-
bation officers, and representatives
from the Department of Justice and

Sentencing

NEWS

FROM

THE

ter and distributed to over 5,000 indi-
viduals and groups.

By statute, the commission's initial
set of guidelines are to be sent to
Congress by Apr. 13. They will take
effect Nov. 1 unless legislation is en-
acted changing or disapproving
them, or delaying their effective
date. ■

Commission

numerous other federal criminal jus-
tice system organizations testified at
the U.S. Sentencing Commission's
public hearings Mar. 11 and 12.
These hearings capped the public
comment period for the commis-
sion's Revised Draft Sentencing
Guidelines.

The commission has already re-
ceived many comments since the
draft sentencing guidelines were
published in the Feb. 6 Federal Regis-

STOORZA, from page 4

In commenting on his selection,
Mr. Stoorza said that he had thor-
oughly enjoyed his tenure with the
Judicial Center and was convinced
that the experience he gained would
allow him to manage effectively the
widespread installation of Center-de-
veloped software applications into
the nationwide federal courts.

A native Texan, Mr. Stoorza is a
graduate of the University of
Oklahoma and holds the rank of cap-
tain in the U.S. Naval Reserve. ■

The Source

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 mailing label, pref-
erably franked (but do not send an envelope), and
addressed to Federal judicial Center, Information
Services, 1520 H Street, N.W., Washington, DC
20005.

Brennan, William J., Jr. "Constitutional
Adjudication and the Death Penalty: A
View from the Court." 100 Harvard L.
Rev. 313 (1986).

Burger, Warren E., Carl McGowan,
George E. MacKinnon, et al. "Tribute to
Edward Allen Tamm." 74 Georgetown I.].
1571 (1986).

Feinberg, Wilfred. "Unique Customs
and Practices of the Second Circuit," 14
Hofstra L. Rev. 297 (1986).

Flanders, Steven. "What Do the
Federal Courts Do?" 5 Rev. of Litigation

199 (1986).

Higginbotham, Patrick E. "Judicial At-
titudes: Pylons for the Advocate." 5 Rev.
of Litigation ISl (1986).

Leval, Pierre N. "Dedication to Henry
J. Friendly— In Memory of a Great Man."
52 Brooklyn L. Rev. 571 (1986).

McGowan, Carl. "The President's Veto
Power: An Important Instrument of Con-
flict in Our Constitutional System." 23
San Diego L. Rev. 791 (1986).

Mikva, Abner J. "How Should the
Courts Treat Administrative Agencies?"
36 American University L. Rev. 1 (1986).

Posner, Richard A. "Law and Litera-
ture: A Relation Reargued." 72 Virginia L.

Rev. 1351 (1986).

y Rehnquist, William H. "The Many

Faces of the Bicentennial." Remarks Be-
fore the ABA, New Orleans, La., Feb. 15,
1987.

y Scalia, Antonin. Remarks Before the
Fellows of the American Bar Foundatior
and the National Conference of Bar Presi
dents, New Orleans, La., Feb. 15, 1987.

Smith, Loren A. "A Vision of the Ex
change." 27 William & Mary L. Rev. 76'
(1986).

Stevens, John Paul. "The Third Brand
of Liberty." 41 University of Miami L. Rei
227 (1986).

Warriner, D. Dortch. "Of Laws, Men
and Judges." 20 University of Richmond L
Rev. 451 (1986).

BULLETIN OF THE /TtTK
FEDERAL COURTS ^i<^

LEGISLATION, from page 3

delayed the effective date of section
215(b) until Nov. 1, 1987. Rep. John
Conyers, Jr. (D-Mich.) introduced his
bill "in hopes of foreclosing any
litigation" over whether the Court's
order continues in effect until Nov 1
1987.

• H.R. 938, sponsored by Rep.
Norman D. Shumway (R-Cal.),
would abolish the Legal Services
Corp.

• S. 464. Sen. Alan Cranston (D-
Cal.) sponsored this bill to amend the
1964 Civil Rights Act to prohibit dis-
crimination on the basis of affectional
or sexual orientation.

• S. 426, the Liability Insurance Re-
form Act of 1987, was introduced by
Sen. Claiborne Pell (D-R.L). The bill
would cap pain and suffering awards
at $250,000 and would mandate a
staggered payment method for
awards over $250,000 instead of the
current lump-sum payment system.
[See the ABA's recommendation
against capping such awards re-
ported on p. 2.] In addition, the bill
would place a schedule system on
rontingency fees. This scale would
illow an attorney to receive 33V3 per-
:ent of the first $250,000 of an award;
!5 percent of the amount from
5250,000 to $1 million; and 20 percent
)f award amounts over $1 million.

• H.R. 635, the Product LiabiHty
Voluntary Claims and Uniform
Standards Act of 1986, is sponsored
^y Rep. William E. Dannemeyer (R-
-al.). This bill would preempt con-
licting state law and provide for uni-
3rm standards of liability. The most
alient features of the bill include
limination of joint and several lia-
ility in favor of comparative respon-
ibility, a cap on punitive damages to
vo times the amount of economic
amages or $100,000, whichever is
ss, settiement incentives, and an al-
•rnative dispute resolution mecha-
ism.

• S. 260, the Reform of Federal In-
rvention in State Proceedings Act,
as mtroduced by Sen. Strom Thur-
ond (R-S.C). The measure is in-

tended by its sponsors to clarify in
habeas corpus cases the standard of
review, the effect of prior procedural
defaults, time limits for bringing peti-
tions, and the extent to which state
remedies must tirst be exhausted.

• Representative Dan Glickman
(D-Kan.) introduced, and the House
Judiciary Committee's Subcommittee
on Administrative Law and Govern-
mental Relations marked up, H.R.
1162, dealing with multiple appeals
to the courts of appeals— the so-
called "race to the courthouse" (see
the Third Branch, January 1987, p. 7).
• The director of the Oftice of Man-
agement and Budget has sent to the
Speaker of the House and to the Sen-
ate a letter transmitting a draft of pro-
posed legislation to terminate the
State Justice Institute. The State Jus-
tice Institute board was sworn in in
1986 and the institute is functioning
this tiscal year with a budget of $7.2
million. ■

ABA, from page 2

THE BOARD OF THE
FEDERAL JUDICIAL CENTER

Chairman

The Chief Justice
of the United States

Judge Anthony M. Kennedy

United States Court of Appeals

for the Ninth Circuit

Judge Alvin B, Rubin

United States Court of Appeals

for the Fifth Circuit

Judge Wiiliam Clark O'Kelley

United States District Court

Northern District of Georgia

Judge Jose A. Cabranes

United States District Court

District of Connecticut

Judge A. David Mazzone

United States District Court

District of Massachusetts

Chief 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 Director

did approve, after considerable de-
bate, a recommendation that relates
to the issue of punitive damages.
They agreed that punitive damages
"have a place in appropriate cases
and should not be abolished," but
the scope of the damages should be
limited to cases where the standard
of proof to be applied should be
'^clear and convincing" as opposed to
"preponderance of the evidence."
The resolution cautioned that the
courts should closely scrutinize
awards and the net worth of defend-
ants in order to stem the tide of ex-
cessive punitive damage awards.

Injunctive relief, judicial officers.
The delegates approved a resolution
from the ABA Appellate Judges'
Conference to ask Congress to
amend 42 U.S.C. §§ 1983 and 1988 to
prohibit the award of injunctive relief
against any judicial officer for an act
committed in his or her capacity as a
judicial ofticer and not clearly in ex-
cess of the officer's jurisdiction un-
less a declaratory judgment was ig-
nored, violated, or unavailable. The
resolution included a prohibition on
counsel fees.

Fed. R. Crim. P. 35(b) (Reduction
of sentence by a federal judge). A
resolution to ask Congress to retain
this rule was approved. The revised
draft guidelines proposed by the U.S.
Sentencing Commission would viti-
ate this rule. [For a related story, see
the report on H.R. 742 on p. 3.]

Money laundering. A resolution
was approved urging that Congress
amend the Money Laundering Con-
trol Act of 1986 to exempt provisions
of the law that now call for an at-
torney to forfeit funds accepted from
a client who is subject to criminal in-
vestigation.

Civil RICO Act. The House of Del-
egates approved asking Congress to
amend 18 U.S.C. §§ 1961-1968 to
limit the availability of a private civil
action under the act. Seven ABA
groups joined in requesting this reso-
lution. ■

10^

THE

RD BRANCH

.11

NOTEWORTHY, from page 5
federal and state prosecuting offi-
cials.

The new requiren\ent applies only
with respect to court orders or exten-
sions entered on or after Jan. 20,
1987. 18 U.S.C. § 2519(l)(b) now re-
quires prosecuting officials to report
to the AO whether the order denying
or approving intercepted wire, oral,
or electronic communications was an
ordinary specificity order, which re-
quires a particular description of the
type and location of the intercept de-
vice, or was a relaxed specificity
order (roving tap), which allows a
less explicit description. Until such
time as the states pass legislation in
conformance with the federal statute
that provides for roving intercep-
tions, all state intercept orders will be
"ordinary" orders.

Ruling on suspension of jury trials
not vacated. The Ninth Circuit re-
jected a Justice Department request
to vacate a June 1986 ruling that the
suspension of federal civil jury trials
would violate the Seventh Amend-
ment. The Justice Department ar-
gued that the ruling became moot
when Congress appropriated supple-
mental funding for juror fees. (See
The Third Branch, August 1986, p. 2.)
The Ninth Circuit declined to find the

case moot, and also found applicable
an exception to the mootness doc-
trine for cases involving a voluntary
cessation of unlawful conduct that is
likely to recur. Armster v. United
States District Court, 806 F.2d 1347
(9th Cir. 1986).

Second Circuit construes 1978 Jury
System Improvements Act. The Sec-
ond Circuit recently held that Con-
gress did not intend that compensa-
tory damages be awarded in actions
brought under the 1978 Jury System
Improvements Act. An aggrieved
employee-juror maintained that the
"other benefits" and "other appro-
priate relief" allowed by the statute
should permit the recovery of com-
pensatory damages for mental pain
and suffering. The Second Circuit
disagreed, finding no congressional
intent in the statute to provide com-
pensatory damages. Shea v. County of
Rockland, No. 86-7747, Jan. 21, 1987.
The statute at issue, 28 U.S.C. § 1875,
provides that no employer shall dis-
charge, threaten, intimidate, or co-
erce any permanent employee by rea-
son of such employee's jury service,
and that an employer violating the
statute shall be liable for damages for
lost wages or "other benefits" and
may be ordered to provide other "ap-
propriate relief." ^

GIGNOUX, from page 3

representative to the Judicial Con-
ference.

Since 1980, the judge has been a
member of the Temporary Emer-
gency Court of Appeals.

Judge Gignoux was appointed U.S.
district judge for the District of Maine
in 1957 and served as chief judge
from Nov. 8, 1978, to June 1, 1983,
when he took senior status. He is a
graduate of Harvard Law School and
served as a lieutenant in the U.S.
Army. He was separated from the
service in 1946.

The Devitt Award has been pre-
sented annually by West Publishing
Co. since 1982 to recognize extraordi-
nary service to justice performed by a
federal judge. The selection is made
by a three-member committee, which
this year was Justice William J. Bren-
nan, Jr., Chief Judge Charles Clark
(5th Cir.), and Judge Edward J. De-
vitt (D. Minn.), for whom the award
is named. Previous winners are Chief
Justice Warren E. Burger and Judges
Albert B. Maris (3d Cir.), Walter E.
Hoffman (E.D. Va.), Frank M. John-
son (11th Cir.), and William J. Camp-
bell (N.D. 111.). The award was given
posthumously to Judge Edward A.
Tamm (D.C. Cir.) in 1986. ■

BULLETIN OF THE FEDERAL COURTS

theTHIHDbranch

First
Class
MaU

Vol. 19 No. 4 April 1987

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

Official Business

Postage and

fees paid

United States

Courts

U.S. GOVERNMENT PRINTING OFFICE 1987^91-221-40012

3b,

BULLETIN OF THE FEDERAL COURTS

>'*^^P'^~*-'^'

theH

BRANCH

isuiac.

VOLUME 19
NUMBER 5
MAY 1987 /

Sentencing, Salary
Resolutions Passed by
Judicial Conference

The Judicial Conference of the Unit-
ed States has authorized its Ad Hoc
Committee on Sentencing Guidelines
to recommend appropriate Con-
ference positions to the Conference's
Executive Committee following pro-
mulgation of the sentencing
guidelines by the Sentencing Com-
mission. The Ad Hoc Committee was
also asked to recommend whether, in
light of substantial judicial branch op-
position to the guidelines, the Judrcjal '

'^ a

Inside:

Special Report on the

Sentencing Commission's

Guidelines

A special report on the Sentenc-
ing Commission's Sentencing
Guidelines and Policy Statements for the
Federal Courts, as submitted Apr. 13
to Senate President Bush and House
Speaker Wright, begins inside on
page 3.

Conference should recommend that
Congress repeal the statute creating
the Sentencing Commission and re-
quiring sentencing guidelines. The

See CONFERENCE, page 7

Subcommittee Chairman
Weighs Court Issues,
Immigration Problems

Romano L. Mazzoli has represented the
congressional district that includes his
native Louisville since 1971 . He received a
B.S. at the University of Notre Dame and
aJ.D. at the University of Louisville. After
being admitted to the Kentucky bar, he
practiced law and served in the Kentucky
Senate (1967-70). He is chairman of the
House Judiciary Committee's Subcommit-
tee on Immigration, Refugees, and Inter-
national Law.

The Supreme Court's decision in
Cardoza-Fonseca v. Immigration &
Naturalization

A Message MbM jjfc Chief Justice

The committee appointed to stuay
the Judicial Conference and its commit-
tees has been hard at work since we
first met last December at the Supreme
Court. It was agreed then that the com-
mittee members would contact the
judges in all of the circuits to obtain
their views concerning possible im-
provements that should be made in the
operations of the Conference, its com-
mittees, its subcommittees, and in the
staff support to the Conference. Others
in the judicial family also were asked
tor their views. Many responded, and I
thank all those who took the time to
assist us in our efforts to improve judi-
cial governance.

The views of those who responded
were presented to the full committee at
our meeting last February in Phoenix.
An interesting generalization emerged
from the reports from the committee
members. Those who are or have been
chairmen or committee members feel
that the system works reasonably well
although it can be improved. Those
who have not served tend to be more
critical and at times suspicious. It is al-
ready evident, therefore, that there
must be better communication of Con-
ference deliberations and actions
throughout the judiciary and that par-
ticipation can be broadened.

Our next meeting will be held on
May 5 at the Supreme Court. Each com-

vU\

\'^

q(i Service holds
^■^ that the "well-

mittee member will present derailed re-
ports on the area to which each of thg#i
is assigned, ranging from a mission
statement for the overall operations of
the Conference, to terms of office, eligi-
bility to serve, composition, and juris-
diction of Conference committees. I am
well impressed with the dedication so
evident in the response from each of
the committee members. They have
more than enough to do in their judicial
pursuits but recognize the importance
of the judicial governance role stat-
utorily assigned to the Conference. The
committee members are Hon. Levin H.
Campbell, Hon. Wilfred Feinberg,
Hon. Charles Clark, Hon. James R.
Browning, Hon. Aubrey E. Robinson,
Hon. John F. Nangle, Hon. Barbara B.
Crabb, and Circuit Executive James A.
Higgins.

It has been my pleasure to chair the
committee meetings. The executive
secretariat function is performed by
Ralph Mecham, director of the Admin-
istrative Office, and Marion Ott, of his
staff.

The goal of the committee is to pre-
sent recommendations for the consid-
eration of the full Conference in Sep-
tember 1987. Decisions made at that
time will be implemented soon
thereafter

sA^^-

.funded fear'

standard to be
applied in asy-
lum cases is
more generous
than the "clear
probability of
persecution"
standard that
the Board of Im-
migration Ap- Romano L. Mazzoli
peals sought to apply. Do you agree
with predictions of a major increase
in such cases following the decision?
It is very hard to say if there will be a
major increase in the number of cases
that the courts will hear with respect
to the question of the standard an ap-
plicant would have to reach in order to
be granted asylum. But certainly the
cases which have been decided under
the old clear probability of persecu-
tion standard for deciding whether
the individual should be returned to
his or her country will have to be ex-
amined. Many of them will be reex-
amined, and, of course, all the new
cases will come up under the more
relaxed standard of "well-founded
fear." So it is hard to quantify the num-
bers, but I do think that this will add
additional workload to the Immigra-
See MAZZOLI, page 8

THE

BRANCH

Legislation

The following items of interest to
the judiciary are pending in
Congress:

• AO Director Ralph Mecham has
sent to the Congress a draft of pro-
posed legislation to provide enhanced
retirement credit for U.S. magistrates
under the Civil Service Retirement
System and also separate legislation
to establish a new retirement program
for bankruptcy judges and
magistrates.

• H.R. 1162, the "race to the
courthouse bill" (see The Third Branch,

April 1987, p. 9) has been ordered re-
ported to the full House by the Judici-
ary Committee.

• Rep. Thomas j. Tauke(R-lowa) in-
troduced H.R. 1666, a bill to establish
the Social Security Administration as
an independent agency, to reform the
appeals process, and to establish a So-
cial Security court. The Social Security
court would be a specialized court
separate from the judicial branch. So-
cial Security Administration law and
regulations would be binding on it,
and it would not have jurisdiction to
rule on constitutional matters or the
validity of regulations. Federal district
courts would retain jurisdiction of
See LEGISLATION, page 12

Data Show Significant Savings Resulting
From Improvements in Juror Utilization

Juror utilization rates have im-
proved in recent years, resulting in a
total savings of $730,000 for the past
two-year period and lessening the in-
convenience to numerous potential
jurors, according to data on first-day
petit juror usage maintained by the
AO. A series of juror management
and utilization workshops jointly de-
veloped by the FJC and AO, and spon-
sored by the FJC, contributed to the
improved utilization rates and subse-
quent savings.

The AO's data reflect the percentage
of jurors not selected, serving, or chal-
lenged (NSSC) on voir dire/orienta-
tion day. For the period January 1986

^ _^

THETHIRD BRANCH

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.

Co-editors

Alice L. CJ'Dt)nnell, Director, Division of Inter-
Judicial Affairs and Information Services,
Federal Judicial Center. Peter G. McCabe,
Assistant Director, Program Management,
Administrative Office of the U.S. Courts.

through December 1986, the national
percentage of NSSC jurors on the first
day of jury service declined by 2.41
percentage points, from 35.26 percent
in the year ended December 1985 to
32.85 percent in the year ended De-
cember 1986. This decline represents
a savings of $482,000, and equates to
almost 10,000 potential jurors not
being brought into the courthouse
unnecessarily.

The Judicial Conference at its March
1984 session adopted a recommenda-
tion by the Committee on the Opera-
tion of the Jury System to encourage
all courts to reduce the percentage of
NSSC jurors on voir dire/orientation
day to 30 percent. At that time, the
national percentage of NSSC jurors
was 36.50 percent. In recommending
this goal, the committee stated that its
primary concern was the inconven-
ience imposed on citizens called for
jury service.

In response to the adoption of the
30 percent goal, the FJC and AO
jointly developed the juror manage-
ment and utilization workshops,
which are sponsored by the FJC. Over
the last two years, every court has
been afforded at least one opportunity
to have the chief judge or the judge's
designee, the clerk, and the jury ad-

200

it ir ir -k -k if

••••••

Maxi 1787: Delegates to the Consti-
tutional Convention drifted into
Philadelphia, many lodging at the
Indian Queen, where, reported Vir-
ginia's George Mason, "we are
charged only twenty-five Pennsyl-
vania currency per day."

On May 25, when a majority of
states were finally represented, the
convention chose George
Washington to preside and adopted
rules, including a rule that "nothing
spoken in the House be printed, or
otherwise published or communi-
cated without leave."

Debate began May 29 when Vir-
ginia Governor Edmund Randolph,
coached by James Madison, pro-
posed a government differing
sharply from the Articles of Con-
feration. It would "be paramount to
the state constitutions," based on
"the republican principle," and in-
clude separate executive, legislative,
and judicial branches.

The Virginia Plan's "National Judi-
ciary," sitting in "supreme" and "in-
ferior tribunals," would be chosen
by the national legislature, hold of-
fice "during good behaviour," and
receive a salary "in which no in-
crease or diminution shall be made
so as to affect" incumbent judges. Its
jurisdiction would include admi-
ralty cases, "cases in which for-
eigners or citizens of other States ap-
plying to such jurisdictions may be
interested, or which respect the col-
lection of the National revenue; im-
peachments of any National of-
ficers, and questions which may in-
volve the national peace and
harmony."

BlCENTENNIAl. OF

THE U.S. CONSTrrUTION

ministrator attend a workshop. The
workshops have been well received
by all participants, and have ahead)
produced impressive results. Statis-
tics for the past two-year period show
that, in addition to the financial sav-
ings, almost 15,000 potential jurors
were spared unnecessary ap-
pearances. B

BULLETIN OF THE /viTK
FEDERAL COURTS ^1^

Jpecial Report: Guidelines Go to Congress;
August '88 Implementation Proposed

On Apr. 13, U.S. Sentencing Com-
lission chairman William W. VVilkins,
•., of the Fourth Circuit Court of Ap-
eals submitted the commission's
eiitcncing Guidelines and Policy State-
ments for the Federal Courts to Senate
resident Bush and House Speaker
/right. The commission, which will
istribute the guidelines more broad-
■ after prinhng and binding, noted
lat they are "an initial set of
Liidelines" and stressed that it sees
16 "guideline-writing process as evo-
itionary." The commission, as a per-
lanent agency responsible for
onitoring federal sentencing prac-
:es nationally, said that it will submit

Sentencing

NEWS

FROM

THE

Commission

edifications and revisions to Con-
ess based on "continuing research,
perience, and analysis."
The October 1984 Comprehensive
ime Control Act authorized crea-
in of the Sentencing Commission,
(lich consists of seven voting mem-
rs, whom the President nominated
September 1985, and two ex officio
embers. The statute also prescribed
e basic framework for the sentenc-
5 system in which the commission's
idelines are to operate.
The commission issued two draft
ts of guidelines in September and
luary for public review and com-
?nt. These April guidelines will he-
me law Nov. 1, 1987, unless
anged or delayed by statute.
The commission has recommended
it Congress allow the guidelines to
3 into effect November 1, 1987, . . .
t that Congress enact legislation
jying implementation of the
idelines . . . until August 1, 1988."
itutory changes keyed to guideline
plementation — such as the aboli-
n of parole and appellate review of
itences — would also be delayed

until Aug. 1. This delay, however,
does require a statutory enactment. If
Congress does not act before Nov. 1,
federal courts must then start sen-
tencing according to the guidelines'
provisions — at least with respect to of-
fenses committed after that effective
date.

The commission proposed the de-
lay to allow it to field-test the submit-
ted guidelines prior to implementa-
tion. During the field tests, the com-
mission would encourage judges to
apply the guidelines to cases before
them in addition to exercising their
regular sentencing duties. The com-
mission would provide the judges
forms on which they could advise the
commission of the results of these
tests, along with problems and rec-
ommendations. It will use this infor-
mation to prepare technical and sub-
stantive amendments, which it would
submit to Congress in early 1988, to
take effect on Aug. 1, 1988.

The commission noted that the de-
lay would also allow additional time
for the training of judges and proba-
tion officers, prosecutors, and de-
fense counsel. The FJC committee on
education related to the 1984 crime
control legislation, chaired by Judge
A. David Mazzone (D. Mass), has be-
gun formulating training plans for ju-
dicial branch personnel.

Sentencing Table

The guidelines contain a Sentenc-
ing Table with 43 offense levels on the
vertical axis and six categories of crim-
inal history on the horizontal axis.
Offenders in criminal history category
1 would likely have little or no crimi-
nal record, while those in category 6
would likely have extensive criminal
histories.

The judge would find the applica-
ble guideline sentencing range,
which the table expresses in months
of imprisonment, by determining the
offense level and then reading across
See SENTENCING, page 4

Carlson to Retire;
Quinlan Successor at
Bureau of Prisons

Norman Carlson, director of the
Bureau of Prisons since 1970, will re-
tire July 3, and J. Michael Quinlan, a
career employee in the Department of
Justice, will
become the
Bureau's new
director.

Mr. Carl-
son is a
native of
Iowa. He be-
gan his ca-
reer in pe-
nology as a
parole officer
at Leaven-
worth, Kan., Norman Carlson
in 1957 and held a series of positions at
the Bureau of Prisons in Washington
from 1960 until 1970, including four
years as executive assistant to former
director James Bennett.

During Mr. Carlson's tenure as di-
rector, the
number of
federal pris-
ons grew
from 27 to 47,
and the num-
ber of in-
mates in-
creased from
20,200 to
about 42,000.
He presided
over or en-
couraged /• Michael Quinlan
many developments and improve-
ments in prison administration, in-
cluding the increased professionalism
of the Bureau's staff, increased em-
ployment and training opportunities
for prisoners, more prisons and better
design of newly constructed prison
facilities, and enhanced sharing of
knowledge between the judiciary and
the Bureau.

Mr. Quinlan is a graduate of Ford-
ham Law School, and holds a master
See PRISONS, page 12

THE

BRANCH

SENTENCING, from page 3

the axis to the proper criminal history
category. Offense level 4, for example,
which could apply to an offender con-
victed of theft of $100 or less, pre-
scribes a sentencing range of 0 to 4
months for an offender in criminal
history category 1, and 6 to 12 months
for an offender in criminal history cat-
egory 6. Offense level 38, which could
apply to an offender convicted of air-
craft hijacking, prescribes a sentenc-
ing range of 235-293 months for
offenders in criminal history category
1, and 360 months to life for offenders
in both the 5th and 6th criminal histo-
ry categories.

The commission began its deter-
mination of guideline ranges "by esti-
mating the average sentences now
being served within each category"
and thus believes that "guideline sen-
tences in many instances will approxi-
mate existing practice."

Determining Offense Levels

Base offense levels. Chapter 2, "Of-
fense Conduct," prescribes the base
offense levels for approximately 170
offenses — for example, "aggravated
assault" (15), "criminal infringement
of copyright" (6), "renting or manag-
ing a drug establishment" (16), "insid-
er trading" (8), "obstruction of justice"
(12), and "trafficking in a United
States passport" (6).

A forthcoming statutory index will
direct users to appropriate guideline
offense sections. For cases where
there is no guideline for a specific stat-
ute, the judge is directed to apply the
most closely analogous guideline of-
fense section.

Adjustments for specific offense charac-
teristics. In addition to the "base of-
fense levels," chapter 2 includes vari-
ous "specific offense characteristics"
with which to adjust base offense lev-
els. For example, guideline 2E2.1
specifies a base offense level of 20 for
"making, financing, or collecting an
extortionate extension of credit" but
directs increasing that base offense
level by 5 levels if a firearm was dis-

charged, by 4 levels if a firearm or
other dangerous weapon was "other-
wise used," and by 3 levels if a firearm
or other weapon was in the offender's
possession.

Unlike the commission's January
1987 draft guidelines, the submitted
guidelines contain no ranges for spe-
cific offense characteristics. For exam-
ple, with respect to "larceny, embez-
zlement, and other forms of theft,"
the January draft directed the judge to
increase the offense level "by 1 to 3
levels, depending upon the degree of
planning and sophistication." The
submitted guidelines, by contrast,
provide a single number: "If the of-
fense involved more than minimal
planning, increase by 2 levels."

Other adjustments. Chapter 3 of the
guidelines include a series of other
adjustments.

Part A includes three adjust-
ments— vulnerable victim, official vic-
tim, and restraint of victim — that are
to be treated as specific offense charac-
teristics and applied to any relevant
offense unless the offense guideline in
chapter 2 "incorporates these factors
either in the base offense level or as a
specific offense characteristic." The
"official victim" guideline, for exam-
ple, directs an increase of 3 levels if the
victim was a law enforcement or cor-
rections officer or any one of numer-
ous public officials or their family
members "and the crime was moti-
vated by such status."

Chapter 3 also provides adjust-
ments for "role in the offense,"
"obstruction," "multiple counts," and
"acceptance of responsibility."

Determining Criminal History

The Sentencing Table expresses of-
fense characteristics in levels, but it
expresses criminal history in points.
Chapter 4 assigns points for five
items, three relating to prior sentence
and two relating to sentencing status
when the offense was committed. The
judge is instructed, for example, to
add 3 points for each prior sentence of
imprisonment exceeding one year
and one month. The total points for

Calendar

June 1-5 Orientation for New Probation
and Pretrial Services Officers

June 3-5 Regional Substance Abuse and
Treatment Seminar

June 3-6 Sixth Circuit Judicial
Conference

June 8-9 Judicial Conference Subcom-
mittee on Judicial Statistics

June 8-14 Residential Week — Fordham
Master's Program

June 15-16 Judicial Conference Subcom-
mittee on Federal Jurisdiction

June 15-16 Judicial Conference Subcom-
mittee on Federal-State Relations

June 25-27 Fourth Circuit Judicial
Conference

June 29-30 Judicial Conference Adviso-
ry Committee on Civil Rules

June 29-July 1 National Management
Seminar for Chief Probation and
Pretrial Services Officers

these five items translate into the of-
fender's criminal history category for
the table.

The commission noted empirical re-
search on the correlations between
various offender characteristics and
recidivism but stated it "has made no
definihve judgment in respect to the
reliability of the presently existing
data" and "will review further data
insofar as it becomes available in the
future."

Other Issues

Several issues have pervaded dis-
cussion and comment on the commis-
sion's September and January draft
guidelines and will no doubt be scru-
tinized in the guidelines as submitted.
They include:

"Real offense sentencing" versus
"charge offense sentencing." The com-
mission's September draft guidelines
embodied a "modified real offense
system," which based sentences on
charged and some uncharged be-
havior. In the submitted guidelines,
the commission has "moved closer to

See SENTENCING, page 5

BULLETIN OF THE
FEDERAL COURTS

5ENTENCING, from page 4

i 'charge offense' system" but has re-
tained what it calls "a number of real
?!ements." It notes, for example, that
:he guidelines often describe generic
ronduct (such as "aggravated assault")
>ecause of "the hundreds of overlap-
7ing and duplicative statutory provi-
iions that make up the federal crimi-
lal law." Also, through specific of-
ense characteristics and adjust-
nents, the guidelines take into ac-
ount "a number of important, com-
tionly occurring real offense ele-
ments such as role in the offense, the
iresence of a gun, or the amount of
loney actually taken."
Moreover, real offense behavior is
ansidered "in the case of conviction
y plea of guilty or tiolo contendere con-
lining a stipulation that specifically
5tablishes a more serious offense
»an the offense of conviction." Addi-
onally, the guidelines contain a "rel-
iant conduct" guideline (202), which
ates that "to determine the se-
ausness of the offense conduct," the
dge shall take into account "all con-
JCt, circumstances, and injuries rele-
int to the offense of conviction."
Departures from the guidelines. Con-
ess has provided that the court may
•part from the guidelines when it
ids "an aggravating or mitigating
■cumstance" that the commission
d not "adequately" consider. In its
>ening chapter, the commission
>ted its intention that courts "treat
ch guideline as carving out a 'heart-
id,' a set of typical cases embodying
? conduct that each guideline de-
ribes." A court may consider
lether to depart from the guidelines
len it "finds an atypical case, one to
iich a particular guideline lin-
istically applies but where conduct
nificantly differs from the norm."
-xcept for a few specific exceptions
imely, race, sex, national origin,
'ed, religion, socio-economic sta-
■; drug dependence or alcohol use;
i personal or business financial dif-
alties), "the commission does not
end to limit the kinds of factors

(whether or not mentioned anywhere
else in the guidelines) that could con-
stitute grounds for departure in an
unusual case."

The commission, however, avers its
belief "that despite the courts' legal
freedom to depart from the guide-
lines, they will not do so very often."
Multicount convictions. This issue
was not addressed in the two draft
guideline documents. In the submit-
ted guidelines, "fungible items," such
as separate drug transactions or thefts
of money, are aggregated across con-
viction offenses, and the guidelines
apply to the total amount. In other
kinds of multiple count cases, the
guidelines provide for adding one to
five offense levels to that for the most
serious count, depending on offense
seriousness and the distinctiveness of
the harm caused.

Probation. Probation is available
when the minimum term of imprison-
ment in the guideline range is zero.
The guidelines also authorize proba-
tion when the minimum term of im-
prisonment in the guideline range is
at least one but not more than six
months, provided that community
confinement is substituted for the
minimum term specified. A provision
new to the submitted guidelines
provides that when the minimum
term of imprisonment is at least one
month but not more than ten months,
the minimum term can be satisfied by
a sentence of imprisonment of at least
one-half the minimum term of im-
prisonment, providing that the re-
mainder of the minimum term of im-
prisonment is served in community
confinement as a condition of super-
vised release.

Plea agreements. The commission
states in chapter 1 that it has not
sought in these initial guidelines to
"make significant changes in current
plea agreement practices" and notes
that the "court will accept or reject any
such agreements primarily in accor-
dance with . . . Fed. R. Crim. P. n(e)."
Guideline 6B1.2 allows the court to

See SENTENCING, page 6

Federal Rules Amendments
to Become Effective

Absent further congressional ac-
tion, amendments to the Federal
Rules of Civil and Criminal Pro-
cedure will become effective on
Aug. 1, 1987, and amendments to
the Federal Rules of Evidence will
become effective on Oct. 1, 1987.
The amendments were approved by
the Supreme Court and transmitted
by the Chief Justice to Congress in
March.

The Supreme Court announced
amendments to the bankruptcy
rules on Mar. 30 and authorized
their transmittal to Congress. The
amendments to the bankruptcy
rules will take effect Aug. 1, 1987,
absent further congressional action.

Personnel

Nominations

Royce C. Lamberth, U.S. District Judge,

D.D.C., Mar 19
Susan W. Liebeler, U.S. Circuit Judge,

Fed. Cir, Man 23
Suzanne B. Conlon, U.S. District Judge,

N.D. III., Apr 2

Confirmations

Morton I. Creenberg, U.S. Circuit Judge,

3rd Cir, Mar 20
Edward Leavy, U.S. Circuit Judge, 9th

Cir, Mar 20
Malcolm F Marsh, U.S. District Judge, D.

Or, Mar 20

1986 Financial Disclosure
Statements Due in May

All judicial officers and judicial
employees in Grade 16 and above,
including court reporters whose
gross receipts plus regular salaries
equaled or exceeded $61,296, are re-
minded that they are required to file
a financial disclosure statement for
calendar year 1986 by May 15. This
includes those employees who may
have only worked up to 60 days dur-
ing 1986.

Annual filings are required by the
Ethics in Government Act, 28
U.S.C.A. app. §§301-309 (Supp.
1987).

theTHIRDbranch

SENTENCING, from page 5

accept a plea agreement including a
charge dismissal or agreement not to
pursue a charge if the court deter-
mines, on the record, that the remain-
ing charges accurately reflect the se-
riousness of the actual offense be-
havior and that acceptance will not
undermine the statutory purposes of
sentencing.

It also allows the court to accept a
recommended sentence, or a specific
sentence agreement, if it is satisfied
that the sentence is within the ap-
plicable guideline range or "departs
from the applicable guideline range
for justifiable reasons."

Fines. The guidelines provide that
unless the offender establishes in-
ability to pay or that payment would
unduly burden dependents, "the
court shall impose a fine in all cases"
and "impose an additional fine
amount that is at least sufficient to pay
the costs to the government of any
imprisonment, probation, or super-
vised release ordered."

Further Information

When it distributes the printed and
bound guidelines, the commission
will submit a report to Congress fur-
ther explaining its recommendations,
the projected impact of the guidelines
on correctional facilities and services
the operation of the guidelines ir
comparison with current sentencing
practices, and other relevant support-
ing information.

Commission Vote

As required by 28 U.S.C. § 994(a),
the guidelines were approved by af-
firmative vote of a majority of the com-
mission's seven voting members.
Commissioner Paul H. Robinson
voted in the negative and will submit a
written dissent. Commissioner
Ronald L. Gainer, a nonvoting, ex of-
ficio member from the Department of
justice, stated that if he were a voting
commissioner, as a personal matter,
he would not have voted to support
the guidelines in their current form.

Fennell Named New Director of Center's
Innovations & Systems Development Division

FJC Director A. Leo Levin has an-
nounced that Richard Fennell has
been named director of the Center's
Innovations and Systems Develop-
ment Divi-
sion. Dr.
Fennell has
served as
deputy direc-
tor of that di-
vision since
1981, and as
its acting di-
rector since
March 1987,
when the
previous di-
rector, Larry
Stoorza, joined the Administrative Of-
fice as assistant director for automa-
tion and statistics (see The Third
Branch, April 1987, p. 4). From 1975 to
1981, he served the division as a sen-
ior research computer scientist.

Dr. Fennell stated, "Until now, the
primary recipients of the Center's au-
tomafion efforts have been the clerks'
offices of circuit, district, and bank-
ruptcy courts. We are now preparing
to transfer responsibility to the AO for
the operational implementafion and
support of our latest generation of

Richard Fennell

electronic docketing and case man-
agement systems. This transfer will
provide the Systems Division with an
opportunity to revert to a more
research-oriented role and to under-
take a range of technology assessment
studies and experimental evaluations
that have been requested by Judicial
Conference committees, judges, and
members of the court family. We in-
tend to place particular emphasis or
addressing the automation needs anc
concerns of judges and their in
chambers staffs. We hope these stud
ies will enable the federal courts tc
take full advantage of state-of-the-ar
automafion technologies."

Dr. Fennell is a graduate of Rennse
laer Polytechnic Insfitute and holds ;
Ph.D. in computer science fron
Carnegie-Mellon University. He is th(
author and coauthor of numerous arti
cles in professional journals.

Daniel Skoler, the director of th
FJC's Continuing Education an(
Training Division, has announcec
that Steven Wolvek has been appoint
ed deputy director of that division
Dr. Wolvek received his Ph.D. in so
ciology-criminology from UCLA, an(
came to the staff of the Center fron
the private sector in 1986. I

Noteworthy

Suit challenges pay raise mechanism.

A suit challenging the legality of the mech-
anism that resulted in increased con-
gressional and judicial salaries is pending
in D.D.C. Humphrey v. Baker, No. 87-128.
The plaintiffs include Sen. Gordon J.
Humphrey (R-N.H.), five members of the
House of Representatives, and Ralph
Nader. The suit asks for a declaratory
judgment that the procedures established
by2U.S.C.A.,ch. 11, for determining the
compen.salion of senior federal officials are
unconstitutional because they constitute
an excessive delegation of the powers of
Congress and violate the recjuirement of
Art. I, § 6, that the compensation of mem-

bers of Congress be "ascertained by law,
and violate the separation of powers, li
the alternative, plaintiffs seek a declara
lion that Congress properly disapprovec
the President's pay recommendations b;
means of a Senate resolution on Jan. 29
1987, and a resolution in the House oi
Feb. 4, 1987.

Deductions of IRA contributions b
petitioner judges allowed. Because judg
es are not "employees" as that term is usei
in section 219(b)(2)(A)(iv) of the Interm
Revenue Code, they are not "qualifie
participants" in a plan established by th
United States for its employees, and th
Commissioner of Internal Revenue mu;
allow them deductions for contribution
to individual retirement accounts, th
U.S. Tax Court has ruled. Porter v. Commi:
sioner of Internal Revenue, 88 T.C. No. 2
(Mar. 5, 1987). '

BULLETIN OF THE /TfTK
FEDERAL COURTS ^Jb^

CONFERENCE, from page 1

Conference directed the Ad Hoc Com-
mittee to consult with the Commit-
tees on the Administration of the
Criminal Law and the Probation Sys-
tem in making its recommendations.

In other business, the Conference
also:

• Concurred in the determination
of the Judicial Council of the Eleventh
Circuit that consideration of the im-
peachment of Judge Alcee L. Hastings
may be warranted and authorized the
Chief Justice to certify to that effect to
the Speaker of the House, as provided
by 28 U.S.C. § 372(c)(8) (see The Third
Branch, April 1987, p. 5).

• Endorsed "immediate" action by
Congress to raise the salaries of bank-
ruptcy judges and magistrates.

• Approved new salary classifica-
tion schemes for clerks of court and
chief probation and pretrial services
officers.

• Reaffirmed, with minor amend-
ments, the March 1982 Conference
proposal on retirement of fixed-term
judicial officers, whereby bankruptcy
judges, magistrates, and territorial
judges would receive a full annuity
equal to the salary of office after 14
years of service, payable at age 65.

• Reaffirmed the Executive Com-
mittee's action raising bankruptcy
noticing fees; approved increases in
appellate, district court. Claims
Court, and bankruptcy miscellaneous
fees, excluding a proposal to establish
a new fee for filing a suggestion for a
rehearing en banc by a court of ap-
peals; and recommended that Con-
gress increase Claims Court filing fees
from $60 to $120.

• Approved an amendment to the
regulations governing the recall to
service of retired bankruptcy judges.
The amendment provides that when a
retired bankruptcy judge is recalled to
active service, the judicial council re-
:alling the judge can certify that ade-
quate support cannot be provided by
existing resources, and the director of

the Administrative Office may
provide the necessary space, facilities,
and equipment for the recalled judge.

• Adopted new regulations for the
recall to service of retired magistrates,
patterned on the Conference's regula-
tions for bankruptcy judges.

• Approved increases in the sal-
aries of law clerks and legal assistants,
payable only if Congress appropriates
the necessary additional funds.

• Authorized two pay increases for
all part-time magistrates: the 3 per-
cent cost-of-living adjustment re-
cently granted to federal employees
generally, retroactive to Jan. 1, and an
increase proportionate to the 2.8 per-
cent salary increase granted to full-
time magistrates under the Federal
Salary Act of 1967.

• Recommended that the circuit ju-
dicial councils and national courts
substantially adopt on an experimen-
tal basis the Illustrative Rules Governing
Complaints of Judicial Misconduct and
Disability (see The Third Branch,
November 1986, p. 8), and requested
each judicial council and national
court to report to the Court Admin-
istration Committee by September
1987 on its experience with local judi-
cial discipline rules.

• Recommended that Congress
abolish the Temporary Emergency
Court of Appeals.

• Gave district court security com-
mittees the responsibility of designat-
ing "high-risk crime areas" for parking
purposes.

• Urged Congress to act promptiy
to narrow significantly the scope of

civil RICO actions, 1
§ 1964(c).

U.S.C.

• Urged Congress not to fund and
to reconsider the National Childhood
Vaccine Injury Act of 1986 [see Rep.
Mazzoli's comments on the act, p. 11].

• Reiterated strong support for the
State Justice Institute. ■

AO Appoints Karam
Assistant Director
For Administration

Raymond A. Karam has joined the
Administrative Office to fill the newly
created position of assistant director
for adminis-
tration, AO
Director L.
Ralph Me-
cham has
announced.

Mr. Karam
served as the
acting assist-
ant secretary
at the U.S. De-
partment of
Transportation
and, i m m e - Raymond A. Karam

diately prior to joining the AO, was
deputy assistant secretary for budget
and programs. Mr. Karam has work-
ed in various key management posi-
tions at the Department of Transporta-
tion since February 1981. He has also
served in the U.S. Department of the
Interior, the Executive Office of the
President, and the U.S. Air Force, and
is a member of the Virginia bar. ■

Fed. Cir. Conference
To Be Held on May 8

The Fifth Annual Judicial Con-
ference of the U.S. Court of Appeals
for the Federal Circuit will be held in
Washington, D.C., on May 8 from
9:00 to 5:00 at the Washington Hilton
Hotel. Chief Judge Howard T. Markey
will give the state of the court address,
and Chief Justice Warren E. Burger
will be the luncheon speaker.

There will be separate "breakout
sessions" devoted to the Claims
Court, Court of International Trade,
Merit Systems Protection Board, and
patents and trademarks.

It is expected that a total of 2,000
lawyers and judges will attend. ■

THE

BRANCH

MAZZOLI, from page 1

tion & Naturalization Service and po-
tentially to the courts thereafter. The
work of the Subcommittee on Immi-
gration is oversight, so we would ex-
pect at some point to have some op-
portunity to oversee exactly how this
is being handled in practice once the
new interpretation of "well-founded
fear" becomes the standard.

H.R. 1120 would amend the Immi-
gration and Nationality Act (INA) to
provide religious sanctuary as a de-
fense, in certain cases, to the criminal
offense of harboring or transporting
aliens. Does Cardoza-Fonseca affect
the perceived need for this bill?

The subcommittee in the 100th
Congress has not really organized yet,
and I wouldn't have any way of know-
ing how all my colleagues feel, but I
would think that there would not be a
majority view that persons offering
sanctuary, however laudable their
goal and however noble their inspira-
tion, should be somehow insulated
from the law making it a crime inten-
tionally to harbor an alien.

On the one hand, I think that, with
respect to Cardoza-Fonseca, if, as we
surmise, the new standard is some-
what looser and a little bit easier to
attain, then it is possible that some of
the very people who are now seeking
a kind of sanctuary would be less like-
ly to seek it because they would have a
more proximate remedy in the han-
dling of the asylum petition. On the
other hand, I dispute to some extent
whether or not everyone involved in
the sanctuary movement is really
complaining against the standards
which are being applied in asylum
cases. I think many of them are using
this as a means to express their dis-
affection with overall government
policy in Central America. So I am not
sure whether or not Cardoza-Fonseca
will have a direct effect on the sanctu-
ary movement. It is possible, to the
extent that it would provide a more
likely remedy for asylum seekers.
And that would lessen their need to
go to the more radical solution of
sanctuary.

Do you favor amending the INA so
that aliens will no longer be exclud-
able on ideological grounds?

Certainly those cases shock a per-
son who reads about them — that ad-
vocating certain views, without ad-
vocating overthrow of the govern-
ment or some harm to individuals,
would qualify a person for exclusion
or for deportation or for non-entry.
My recollection is that in the 99th Con-
gress, and possibly the 98th, we had
hearings on the question of revamp-
ing all the 33 exclusions which are
currently in the INA. Congressman
Barney Frank has been very active in
this and we do plan to have hearings

"[W]e are probably not
taking into the country
through the legal
immigration mechanism
enough people with labor
talents or with special
skills and aptitudes."

this year. There are a lot of grounds,
not just ideological views, that cur-
rently could exclude a person from
becoming a legal resident or from en-
tering the country for a visit, and
those will all be examined.

Do you favor the creation of a spe-
cialized corps of asylum adjudicators
separate from the Board of Immigra-
tion Appeals, as in some earlier ver-
sions of proposed immigration re-
form bills?

1 do favor the creation of such a
specialized corps. Unfortunately, in
order to get a bill passed in the 99th
Congress we had to drop that section
from the draft, but it was put in, ac-
cording to my recollection, in the 98th
Congress or even the 97th, when the
bill first began. I felt then, as I feel
today, that some opportunity to have
trained people make these findings
and these adjudications would work
for the benefit of the government as
well as of the applicant. These people
would be trained, they would have

some knowledge of conditions in the
country from which the applicant
fled. These special adjudicators
would have a kind of independence
from government policy that in some
cases maybe current examining of-
ficials don't have. We felt on the whole
that this move would be a salutary
move, but the practicalities overtook
us. We had to drop it along with other
sections in order to provide for the
99th Congress a sort of "slimmed-
down" immigration reform bill. I
wouldn't be at all surprised if the sub-
committee takes another look at the
possibility of changing the whole ap-
proach to the grant of asylum and to
the question of who will hear these
cases. So that may well be something
for this or perhaps a succeeding
Congress.

The Immigration Reform and Con-
trol Act of 1986 (IRCA) set up a spe-
cial counsel's office in the Depart-
ment of Justice, to handle claims of
alleged discrimination in employ-
ment raised by "intending citizens."
Some opposed this. How is this part
of the IRCA working so far?

That's an interesting question be-
cause it relates to one of the core ele-
ments of our immigration reform bill:
If the employer sanction section work-
ed as we thought it would — which
meant that employers could no longer
with impunity hire people who don't
have papers to work in this country —
then there would have to be some
mechanism to give legal protection to
certain of the aliens in order that they
might have their employment rights
protected and in effect be protected
against any unintended discrimina-
tion that could flow from the imposi-
tion of employer sanctions. This was a
central element, highly controversial,
passionately argued for and against.
Today as we are taping this interview,
I have just been served with the pro-
posed regulations from the Justice De-
partment which would flesh out the
Office of Special Counsel. I have not
frankly had a chance to go over them.
Staff is supposed to brief me this after-
See MAZZOLI, page 9

BULLETIN OF THE /rtTK
FEDERAL COURTS ^i^

MAZZOLI, from page 8

noon or tomorrow on them. We will
have an oversight hearing in April
with respect to all of the proposed
regulations that have been issued. Not
just for the Office of Special Counsel
but for employer sanctions, legaliza-
tion, the agricultural sections as well.
And so I am very confident that what-
ever is in these regulations regarding
the special counsel will be looked at
with real scrutiny at that hearing and
gone over with a fine-tooth comb. At
this point they are not really in effect,
and therefore we don't have any in-
kling of how they work, but we draft-
ed the bill carefully with the help of
Congressman Barney Frank, whose
genius produced this, and we hope it
will work as intended to protect the
rights of the people who might some-

Immigration Law Study
Published by FJC

Major Issues in Immigration Law, a
monograph by Professor David A.
Martin of the University of Virginia
School of Law, has recently been
published by the Center.

The monograph presents the ma-
jor features of the relevant substan-
tive and procedural law, highlight-
ing the areas of controversy that
judges are most likely to encounter
Among the topics discussed are the
constitutional framework of the im-
migration laws, admission catego-
ries, grounds for exclusion and de-
portation, poliHcal asylum, and ju-
dicial review. The final chapter is de-
voted to the Immigration Reform
and Control Act of 1986 and in-
cludes discussion of the amnesty
provisions for aliens who have been
in the United States illegally since
Jan. 1, 1982, new employer sanc-
tions, an antidiscrimination provi-
sion, and special provisions for agri-
cultural workers.

Copies of the monograph can be
obtained from Information Services,
1520 H St., N.W., Washington, DC
20005. Please enclose a self-
addressed mailing label, preferably
franked (9 oz.), but do not send an
envelope.

Romano L. Mazzoli

how be the victims of some uninten-
tional discrimination.

The IRCA dealt primarily with il-
legal immigration. But there is also a
system of preferences for would-be
legal immigrants. What are the pros-
pects for legislation affecting issues
in legal immigration?
We began last year
in the 99th Congress
with a few days of
hearings on the
whole question of
legal immigration
and what changes we
should make in that
category. I think that
we can safely assume
that we have now
dealt in a pretty com-
prehensive fashion
with illegal entry.
And we had a very
interesting series of
hearings. We de-
veloped some infor-
mation which was handled by our
subcommittee staff and which itself
will provide the matrix for further
hearings in the 100th Congress. It is
obviously controversial, because since
1965, when the last major change in
the immigration laws took place, we
have seen that certain parts of the
world seem to have used up, in the
process of reuniting their famihes,
most of the total of 270,000 visas avail-
able annually for all of the six basic
preference categories under the law.
The other day, under the 1986 immi-
gration bill, some 10,000 visa numbers
were made available to nations which
have been somehow underrepre-
sented since 1965, nations which in
earlier eras of our country provided
quite a few people— particularly west-
ern Europe. It was conducted as a lot-
tery, and millions of pieces of mail
came to the United States for those
10,000 visa numbers. This indicates
that people around the world with tal-
ents, people with skills, people with
imagination, people with visions of
the future have a built-up, pent-up
feeling that their whole future lies in

the United States. Not all of them are
highly educated, but they want to
work.

The "fifth preference" category
permits the immigration of brothers
and sisters of a petitioning U.S. cit-
izen. There is such a backlog of fifth
preference petitions that petitions fil-
ed 5 or 6 years ago are
only now being acted
on, and those filed
today may take 10 to
12 years to be de-
cided. Will this be
changed?

Actually, the times
you quote probably
are a very con-
servative estimate. It
is probable that some
of these cases will not
come up for more than
10 to 12 years, and
you are probably talk-
ing about hundreds
of thousands of peo-
ple who are in those categories. But as
I indicated, we will broaden our in-
quiry to take into consideration other
questions on legal immigration too.
For example, we are probably not tak-
ing into the country through the legal
immigration mechanism enough peo-
ple with labor talents or with special
skills and aptitudes. Those categories
are practically dried up by the family
unifications; brothers, sisters, par-
ents, children take most of the avail-
able 270,000 numbers that are
provided for the six basic preference
categories in the current legal immi-
gration system. So we will examine
questions of the fifth preference for
brothers and sisters, but also go all
across the gamut — family preferences
as well as preferences dealing with
labor, talent, investors, retirees, and
all the various categories which cur-
rently seem to be basically non-factors
under the current immigration law.

Some earlier immigration reform

bills would have given the courts of

appeals rather than the district courts

jurisdiction over actions by aliens

See MAZZOLI, page 10

THE

BEANCH

MAZZOLI, from page 9

seeking review of exclusion orders.

Did you favor such a provision?

I still favor such a provision. I am
not sure exactly whether it can be at-
tained, but the feeling we had was in
line with the reality of the situation.
An exclusion case is when an individ-
ual is apprehended at the border. A
deportation is when they are in the
United States and are later ap-

gram of court-annexed arbitrations
which are currently in some of the
federal districts around the country. I
support that approach. I think it was
born of discussions held at the con-
ferences which the Brookings Institu-
tion and the two judiciary committees
of Congress and the Justice Depart-
ment have held for the last 10 years on
trying to find alternatives to tradi-
tional litigation to solve disputes. 1

''It is almost an article of doctrinal faith in the minds of
some lawyers that you have to have diversity on the books
or you have lost a major pillar of jurisprudence. I respect-
fully disagree."

prehended. The current practice is
that an excludable alien applies to the
district court, where review proceeds
according to the usual standards for
habeas corpus. But in either a depor-
tation or an exclusion case the individ-
ual usually is not detained. So a
habeas corpus case is really sort of a
legal fiction— the body is not really
being detained. But that is the only
way that the courts have found in this
sophisticated, and somewhat con-
voluted, process to actually try the
question of whether or not a person
ought to be excluded. And we think
the better forum is the circuit court,
which currently hears the cases on
deportation. I think all of these mat-
ters will probably be before the sub-
committee for review as part of our
oversight function.

The House Judiciary Committee's
Subcommittee on Courts, Civil Lib-
erties, and the Administration of Jus-
tice, of which you are a member, held
hearings last Congress on H.R. 4341,
concerning court-annexed arbitra-
tion. What are the prospects for such
a bill in the 100th Congress?

Last Congress, H.R. 4341 was intro-
duced by Congressman Kastenmeier,
who is chairman of the Subcommittee
on Courts, Civil Liberties, and the Ad-
ministraticm of Justice. The bill would
have extended and expanded the pro-

would expect that Congressman
Kastenmeier will reintroduce a bill
similar to H.R. 4341, and since he is
devoted to the idea of finding alter-
natives that he would push it, and I
would certainly support him in that
effort.

little bit of a head start on trying to
formulate methods by which we can
avoid clogging the courts.

Do you favor legislation to elimi-
nate diversity of citizenship as a basis
of federal court jurisdiction?

Sometimes people say that is a lit-
mus test of whether you are a lawyer
or not: Do you favor abolishing diver-
sity? Even though I am a lawyer, I do
favor that. I have in the past and 1 still
do. 1 realize some of the problems in
abrupt, total dismantling of diversity.
Congressman Kastenmeier has in the
past couple of Congresses formulated
alterations in the current diversity
provision. Under that provision,
about half of the cases tried before the
federal courts are there because they
involve matters between individuals
who reside in different states, not be-
cause there is an actual federal ques-
tion. And, of course, half of the
courts' time is a tremendous amount
of time.

Now the antecedents of diversity
are well known to most lawyers. It

"[The National Childhood Vaccine Injury Act of 1986] was
adopted by Congress without the kind of review that
would be brought to it by the Judiciary Committee."

Meantime, 1 have introduced a
piece of legislation, H.R. 1929, the
Federal Courts Study Act, a sort of
brainchild of Judge Clifford Wallace of
the Ninth Circuit in California. Judge
Wallace, at the behest of former Chief
Justice Burger, made a long and
painstaking study of ways to improve
the administration of justice, includ-
ing arbitration and other forms of set-
tlement. Judge Wallace believes, and I
concur, and 1 hope that the Congress
will at some point, that a commission
should be established with members
appointed by the various branches of
government to make a long study — a
10-year study with interim reports —
on what the state of the law and justice
and the courts will be in the year 2000
and thereafter. We might also have a

was to protect against local bias, so
that you had a chance to go to a federal
court if you felt that locally you would
be given somehow biased or un-
favorable treatment. The state courts
have improved by light years from
what they used to be. They are as
competent as the federal courts, and
they are as objective and impartial as
are the federal courts. And you just
don't have that evidence of bias like
you used to have. Now it may be that
you have a more disciplined court set-
ting in the federal courts. It could be
you have certain rules of procedures
in the federal courts that are better
than they have in the states. But those
can be changed and altered by various
mechanisms, rather than loading
See MAZZOLL page 11

BULLETIN OF THE
FEDERAL COURTS

MAZZOLI, from page 10

down the federal courts with hearing
a lot of accident cases.

But having said that, 1 would expect
that the degree of opposition would
not be any less strong and passionate
this time around than it has been for
the last two or three Congresses. It is
almost an article of doctrinal faith in
the minds of some lawyers that you
have to have diversity on the books or
you have lost a major pillar of juris-
prudence. I respectfully disagree, but
I recognize that that will be the basic
battleground, and so I expect that the
question will come up again this year.
I would be hesitant to predict exactly
the outcome.

The National Childhood Vaccine
Injury Act of 1986 was enacted with-
out coming before the Judiciary
Committee, although it sets up a com-
pensation program that would, if
funded, in effect be administered by
the federal courts. As a member of
the committee, what is your view of
this program and of Reagan admin-
istration proposals to seek changes in
t before it is funded?

The fact that a bill like this was
idopted by Congress without the
cind of review that would be brought
o it by the Judiciary Committee is, of
:ourse, an argument in favor of hav-
ng a constant sequential or joint re-
erral of bills where they affect two or
hree committees. Somehow this one
nust have slipped through. I think
hat this argues on behalf of letting
ommittees like the Committee on the
udidary look at the bills as they come
hrough, because we can offer certain
uggestions with respect to the vac-
me bill. Under it, people would go to
ie courts, which would administer
lis kind of no-fault payment situation
y means of special masters. If the
idividuals involved are dissatisfied
'ith the special master's decision,
len of course they can appeal to the
•strict courts and have a de novo tri-
I- So you can have actually two shots
ere, which doubles the workload,
his may be just another immense

hurdle for the federal courts to sur-
mount in order to try to become effec-
tive and handle their other litigation in
a more timely fashion. So although I
am not quite sure that the adminstra-
tion should come in and try to change
a bill before it becomes effective, I do
think that good-faith questions have
been raised about whether or not it
will work for the federal courts to be-
come a kind of special master. I would
expect, since this bill has not yet been
funded, that before the program is

"[TJhese calls to abolish
the Legal Services
Corporation come up just
like the crocuses every
spring and, just like the
crocuses, pretty soon they
lose their flowers and they
go back into hiding."

started up we might have a review
which might have some modifying
changes.

What are your views on recent calls
to abolish the Legal Services
Corporation?

Well, these calls to abolish the Legal
Services Corporation come up just
like the crocuses every spring and,
just like the crocuses, pretty soon
they lose their flowers and they go
back into hiding.

I would say that the LSC needs con-
stantly to assess where it is going,
because I have faulted it often in the
past for getting too far afield from its
real mission, which is to help the poor
and the underprivileged and the peo-
ple who don't have access to the
courts of law. But they go off on these
sometimes half-baked and fruitless
efforts to upset the apple cart and
change the course of human history,
sometimes forgetting the people that
most need their help. I have always
supported the LSC in the past. I al-
ways voted for the money and I al-

ways shall intend to, but I do think
that constant vigilance is needed to be
sure that it stays alive.

You have been in Congress since
1971. What perspective has that given
you on the work of the judiciary?

Judge Pierce Lively is a very dear
friend of mine and a very respected
member of the bench, not just in Ken-
tucky but around the country. I proba-
bly had my first inkling of the chal-
lenges and also the rewards and the
fulfillments of the bench from Pierce
and from some members of the Sixth
Circuit panels with whom I have vis-
ited over the years, including once at
one of their conferences which took
place in Nashville. I would say that I
probably have higher respect for
members of the federal bench than for
just about anyone. I say that because
of the training that it takes, because of
the hard work — and it is hard work —
and because of the ability they have to
really secure for people the fulfillment
of their rights and redress of their
grievances.

I mentioned earlier the conferences
held under the auspices of the Brook-
ings Institution and of the two judici-
ary committees of Congress and the
Justice Department and the court sys-
tem, where in one room at one time
can come people from the Chief Jus-
tice to freshman members of Con-
gress to talk about the administration
of justice and how to improve it — you
come away from that with a very solid
view of the federal bench. You see the
kind of men and women who are ap-
pointed, and you see the need for
Congress to provide them the tools
they need— not just the dollars it
takes, the clerks in the courtrooms,
and the computers, but also the dis-
pute resolution mechanisms that
would allow them shortcuts to
achieve justice with more economies
and with less time consumed. So I
think it means that Congress (and this
member, because I serve on those
committees) has a responsibility to
stay very close to the subject and to be
careful that we provide for the courts
exactly what they need. ■

'theTHIHDbbanch

Position Available

Chief Probation Officer, E.D. Wis.

Starts July 6, 1987. Salary to $69,976. Re-
quirements include 4 years' experience
in a helping profession, with 1 year's ex-
perience as supervisor; advanced degree
in appropriate social science preferred.
Send resume by May 29 to Sofron B.
Nedilsky, Clerk, U.S. District Court,
Eastern District of Wisconsin, 362
Federal Building, Milwaukee, Wl 53202.

EQUAL OPPORTUNITY
EMPLOYER

LEGISLATION, from page 2

constitutional issues and validity of
regulations issues. As in the Tax
Court, qualified nonattorneys could
represent claimants upon certification
by the special court, or claimants
could represent themselves.

• The Senate Labor and Human
Resources Committee held hearings
on S. 557, the Civil Rights Restoration
Act of 1987, which would broaden the
coverage of certain civil rights statutes
beyond their applicability as inter-
preted in the Supreme Court's Grove
City V. Bell decision. In the House,

Reps. F. James Sensenbrenner, Jr. (R-
Wis.) and Charles W. Stenholm (D-
Tex.) have introduced H.R. 1881, the
Civil Rights Act of 1987, which would
reverse the Grove City decision by
making educational institutions and
public school districts receiving any
federal assistance subject to four exist-
ing civil rights statutes.

• H.R. 1333, introduced by Rep.
Daniel E. Lungren (R-Cal.) would es-
tablish, with certain exceptions, a
one-year statute of limitations period
for the filing of habeas corpus peti-
tions by state prisoners, which would
run from the time of exhaustion of
state remedies. Among the bill's other
provisions, it would vest in appellate
court judges the sole authority to is-
sue certificates of probable cause for
appeal in habeas corpus proceedings,
and would allow federal courts to
deny a habeas petition on the merits
without requiring prior exhaustion of
state remedies.

• Senator Aden Specter (R-Pa.) in-
troduced S. 824, the Torture Victims
Protection Act of 1987, cosponsored
by Sen. Patrick J. Leahy (D-Vt.). The

bill would establish clearly a federal
right of action by aliens and U.S. cit-
izens against persons engaging in tor-
ture or extrajudicial killings in foreign
countries. Only persons acting "un-
der actual or apparent" governmenta
authority would be liable, and courts
could decline jurisdiction over sucj-
suits if it were shown by "clear anc
convincing evidence" that the claimi
ant had not exhausted "adequate ano
available remedies" in the natior
where the alleged violations tool
place. '

PRISONS, from page 3

of law degree from George Wash
ington University. He joined the Bu
reau of Prisons as an attorney in 1971
In 1975, Mr. Quinlan was named ex
ecutive assistant to Mr. Carlson, ;
position he held until 1978, when h«
was named superintendent at th(
Federal Prison Camp, Eglin Air Foro
Base, Fla. He became warden at th(
Federal Correctional Institution ii
Otisville, N.Y., in 1980, and became,
deputy assistant director of the Bu
reau five years later. I

BULLETIN OF THE FEnERAL COURTS

THETHiro BRANCH

Vol. 19 No. 5 May 1987

The Federal Judicial Center

Dolley Madison House
1520 H Street, N.W.
Washington, DC 20006

Official Business

First
Class
Mail

Postage ani
fees paid
United Stat(
Courts

U.S. GOVERNMENT PRINTING OFFICE 1987-181-221-40001

10-5

2-,

BULLETIN OF THE FEDERAL COURTS

m. dec

theTHIRDbranch

VOLUME 19
NUMBER 6
JUNE 1987

Chief Judge Sessionf-^'^Qfcmt Judge John C. Godbold Selected
llZ7L':XlS'"rniA''' ^^'^^*«'" «^ ^^^-^' Judicial Center

Chief Judge William S. Sessions has
•-.erved in the Western District of Texas
nnce December 1974, and has been chief
udge since 1980. Judge Sessions was born
t: Arkansas and received his B.A. and
LL.B. degrees
froni^Baylp<^.
University. He
was a section
chief in the
Criminal Di-
vision at the
Department of
Justice (1969-
71) and U.S.
Attorney for
the Western
District of
William S. Sessions Texas (1971-

4). He currently chairs the Judicial Con-
'rence Subcommittee on Judicial Improve-
lents, and has served on the Implementa-
on Committee on Admission of Attor-
eys to Federal Practice and the Special Ad
loc Court Reporters Study Committee,
(e is a former FJC Board member
1980-84).

Would you explain the work of the
ubcommittee on Judicial Improve-
lents, which is now made up of
iree circuit judges, two district
idges, one bankruptcy judge, and
ne magistrate.

The subcommittee is one of five of
>e Committee on Court Administra-
Dn of the Judicial Conference of the
nited States. It meets twice yearly,
merally in May and December, and
?als with matters referred to it by the
idicial Conference or the parent
)mmittee. These matters include
ich diverse items as automation,
>urt security, court design, travel
gulations for justices and judges, ar-
tration, places of holding court, leg-
lation concerning United States mar-
See SESSIONS, page 6

Circuit Judge John C. Godbold from
Alabama, a judge of the U.S. Court of
Appeals for the Eleventh Circuit, has
been named the new
director of the
Fe,d)gT^l Judicial
-^Gertfer.^.^

'' JHj^' Godbold's
^pj:»ointment was an-
sTiounced by Chief
Justice William H.
Rehnquist, chairman
of the Center's gov-
erning Board. In an-
nouncing that the
Board had unan-
imously elected
Judge Godbold, the
Chief Justice said:

"We are very fortunate to have per-
suaded Judge Godbold to come to
Washington to serve as the Center's
director. He has been a distinguished
and courageous jurist for over two

John C.

decades. In addition, he has served
with distinction as a circuit chief
judge, a member of the Judicial Con-
ference of the United
States, and a member
of the Center's
Board."

Judge Godbold will
succeed A. Leo
Levin, who will retire
on July 31 after more
than a decade as the
Center's director.

Judge Godbold,
who lives in
Montgomery, Ala-
bama, was appointed
judge of the U.S.
Godbold Court of Appeals for

the Fifth Circuit in 1966. He served as
chief judge of that circuit for most of
1981, and later that year became the
first chief judge of the newly created
See GODBOLD, page 3

D.C. Cir. and U.S. Claims Court Introduce
ADR Programs to Promote Case Settlement

The U.S. Claims Court and the U.S.
Court of Appeals for the District of
Columbia Circuit have recently imple-
mented programs using various alter-
native dispute resolution (ADR)
techniques.

The Claims Court has notified
counsel that it will utilize two ADR
techniques: settlement judges and
minitrials. Participation by litigants is
voluntary. When counsel for both
parties agree to employ either tech-
nique, they will notify the presiding
judge, who will consider counsels' re-
quest. If ADR is considered appropri-
ate, the clerk's office will assign the
case to a Claims Court judge, who will
preside over the procedure.

If the settlement judge method is
used, the settlement judge will act as a
neutral adviser, giving a judicial as-
sessment of the parties' settlement
positions, without jeopardizing their
See ADR, page 9

Inside . . .

Judicial Improvements

Bill p. 2

Paper on Sanctions

Under Rule 11 Published . p. 5

Bail Reform Act Report . . p. 5

THE

BPANCH

AO Releases Statistical Reports on
Sentencing Variations, 1986 Judicial Workload

The AO's Statistical Analysis and
Reports Division (SARD) has released
two publications, U.S. District Courts:
Sentence Comparison Reports, and
Federal Judicial Workload Statistics-
December 1986.

U.S. District Courts: Sentence Com-
parison Reports analyzes data for the
two-year period ended June 30, 1986.
The purpose of the report is to present
data "to show variation in sentencing
while attempting to explain some of
the reasons for it."

The publication is a joint project of
SARD, the Systems Services Division
and the Probation Division of the AO,
and the Research Division of the FJC.
More than 2,000 federal probation of-
ficers and statistical clerks collected,
coded, and transmitted the data to
SARD.

Among the significant findings re-
ported in Federal Judicial Workload Sta-
tistics— December 1986 is that in 1986,
the twelve regional courts of appeals
reported a record 34,724 filings, up 3
percent from the previous year. The
largest increases were in state pris-

oner petitions (up 19 percent) and
federal prisoner petitions (up 9
percent).

Civil filings in the U.S. district
courts declined 13 percent during
1986 compared to filings in 1985 —
from 278,778 cases filed in 1985 to
243,495. Much of the decline is a result
of decreased filings for recovery of
overpayments of veterans' benefits
(VA) cases, recovery of defaulted stu-
dent loans, and Social Security dis-
ability cases. The aggregate total of
filings in these three categories was
down 50 percent from 1985.

As in previous years, criminal cases
filed, terminated, and pending in the
district courts increased during the
year. The number of persons under
the supervision of the Federal Proba-
tion System climbed 7 percent from
67,844 to 72,416.

A total of 530,008 bankruptcy peti-
tions were filed during 1986, up more
than 28 percent over filings in 1985.
Nonbusiness filings increased 32 per-
cent while business filings rose 14
percent. *

Legislation

An omnibus bill proposing several
improvements in the judicial branch
has been transmitted to Congress by
AO Director L. Ralph Mecham, and is
expected to be introduced in the near

200

*- ir

THEIHIRD BRANCH

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.

Co-editors

Alice L. O'Donnell, Director, Division of Inter-
Judicial Affairs and Information Services,
Federal Judicial Center I'eter (,. McCabe,
Assistant Director, Program Management,
Administrative Office of the U.S. Courts.

future. Mr. Mecham has also submit-
ted to Congress separate draft legisla-
tion to eliminate diversity of cit-
izenship jurisdiction and to create
additional district and appeals court
judgeships.

The omnibus bill, entitled the Judi-
cial Branch Improvements Act of
1987, embodies many recommenda-
tions made by the Judicial Conference
of the United States over a period of
several years. These include substan-
tially eliminating the mandatory juris-
diction of the Supreme Court, permit-
ting district courts with 8 or more
permanent judges to appoint a district
court executive, and authorizing ex-
perimental arbitration programs in
the district courts.

Also included in the bill are provi-
sions that would:

• Make adjustments in certain

June 1787: James Madison's Virginia
Plan for a new Constitution, pre-
sented to the Convention in late
May, would have combined the
President and a few federal judges
as a "council of revision" that could
veto national or state legislation.
"Annexing the wisdom and weight
of the Judiciary to the Executive," he
argued on June 6, would avoid "laws
unwise in their principle, or incor-
rect in their form."

Rufus Gorham (Mass.) objected:
Judges do not "possess any peculiar
knowledge of the mere policy of
public measures." At most, he
would authorize the President "to
call on Judges for their opinions."
Co-delegate Elbridge Gerry op-
posed "making Statesmen of the
Judges" and Luther Martin (Md.),
noting that "the Constitutionality of
laws . . . will come before the Judg-
es in their proper official character,"
did not want to give them a "double
negative."

"Laws," replied James Wilson
(Pa.), "may be unjust, may be un-
wise, may be destructive; and yet
not be so unconstitutional as to justi-
fy the Judges in refusing to give
them effect." George Mason (Va.)
also endorsed this "further use" of
the judges, who "are in the habit
and practice of considering laws in
their true principles, and in all their
consequences."

The proposal lost 8-3 on June 6
and 4-3 on July 21, with two states
divided. Council opponent Charles
Pinckney (S.C.) later proposed to
authorize the President and Con-
gress to seek advisory opinions
from the judges, a provision the
Committee of Detail did not include
in its draft of the Constitution.

BICENTENNIAL OF

THE US CONSTITUTION

provisions governing jury selection
and service.

• Repeal 28 U.S.C. § 1393, which
presently provides for divisional ven-
ue in civil cases.

See LEGISLATION, page 5

BULLETIN OF THE /KfjK
FEDERAL COURTS ^i^

Noteworthy

Attorney's letter warranted disbar-
ment. An attorney's letter accusing a
magistrate of incompetence and/or re-
ligious bias warranted the attorney's
disbarment from further practice in
the district court, the Fourth Circuit
has held. /// re Evans, 801 F.2d 703 (4th
Cir. 1986).

After a magistrate wrote a report
recommending that a case be dis-
missed for lack of subject matter juris-
diction, the district judge conducted a
je novo review and issued an opinion
idopting the magistrate's report. The
awyer representing the party whose
:ase was dismissed wrote a letter to
he magistrate accusing him of incom-
petence or bias. He also filed a com-
plaint against the magistrate with the
udicial Council for the Fourth Cir-
uit, which was dismissed. A district
udge wrote to the attorney on behalf
>f the district court's disciplinary com-

mittee, stating that the attorney's con-
duct was arguably in violation of three
rules of professional responsibility:
DR 1-102(A)(5), which forbids con-
duct prejudicial to the administration
of justice; DR 7-106 (C)(6), which for-
bids conduct discourteous and de-
grading to a tribunal in which one
appears in one's professional capacity;
and DR 8-102(B), which forbids mak-
ing accusations against a judge or
other adjudicatory officer that one
knew or should have known to be
false. In two later letters to that district
judge, the attorney repeated his
charges that the magistrate was either
incompetent or biased. A third judge
of the district court entered an order
requiring the attorney to show cause
why he should not be disciplined for
writing the letter to the magistrate.
The court ultimately entered an order
of disbarment signed by eight of the
district judges. The district court held
that the attorney's repeated assertions
warranted disbarment. On appeal.
See NOTEWORTHY, page 10

Personnel

JODBOLD, from page 1

eleventh Circuit, serving in that posi-
ion until September 1986.

Judge Godbold, speaking at a meet-
-ig of senior staff of the Federal Judi-
ial Center shortly after his election by
he Board, said: "As a circuit chief
idge, I woke up ^very morning ask-
ig 'how can we do our jobs better?' I
link a philosophy of constant reap-
raisal is compatible with the Center's
hilosophy of trying to see if there are
etter ways for the judiciary to meet
s responsibilities."

Prior to his appointment to the
ench. Judge Godbold was in private
ractice in Montgomery for 18 years,
-vo of his former law partners have
so served as federal judges. Judge
ichard T. Rives, who served as a
dge of the Fifth Circuit Court of Ap-
?als, and later of the Eleventh Circuit
ourt of Appeals, from 1951 until his
?ath in 1982, and Judge Truman M.
obbs, who was appointed to the
?nch in 1980 and currently is chief

judge of the Middle District of
Alabama.

Judge Godbold is a graduate of
Auburn University and Harvard Law
School. His law school career was in-
terrupted by military service during
World War II in the United States
Army. In 1982, he received the
Auburn University Alumni Award for
Achievement in the Humanities.

Judge A. David Mazzone of the Dis-
trict of Massachusetts, chairman of
the search committee, stated: "Judge
Godbold is an outstanding and vig-
orous jurist. He has an established
record of administrative ability and a
commitment to judicial education and
research. We are delighted that he has
agreed to accept this important
position."

Levin, who will return to the faculty
of the University of Pennsylvania Law
School as the first Leon Meltzer Pro-
fessor of Law, praised the selection of
Judge Godbold, noting the important
contributions Judge Goldbold had
made to the Center's work over the

Nominations

Paul V. Gadola, U.S. District Judge, E.D.

Mich., Apr. 23
Robert F. Kelly, U.S. District Judge, E.D.

Pa., May 1
David G. Larimer, U.S. District Judge,

W.D.N.Y., May 5
Larry J. McKinney, U.S. District Judge,

S.D. Ind., May 5
Philip M. Pro, U.S. District Judge, D.

Nev., May 5
Rodney S. Webb, U.S. District Judge,

D.N.D., May 5

Confirmations

James B. Zagel, U.S. District Judge, N.D.

III., Apr. 21
Richard J. Daronco, U.S. District Judge,

S.D.N.Y., May 7
David S. Doty, U.S. District Judge, D.

Minn., May 7
Ronald S. W. Lew, U.S. District Judge,

CD. Cal., May 7
Reena Raggi, U.S. District Judge,

E.D.N.Y, May 7

Senior Status

Spencer M. Williams, U.S. District Judge,
N.D. Cal., Feb. 23

Deaths

Gus J. Solomon, U.S. District Judge, D.

Or., Feb. 15
John K. Regan, U.S. District Judge, E.D.

Mo., Mar. 9
James E. Doyle, U.S. District Judge, WD.

Wis., Apr 1
RossT. Roberts, U.S. District Judge, W.D.

Mo., Apr. 24

Temporary Emergency Court of
Appeals

Reynaldo G. Garza, Chief Judge, Apr. 30

last decade. "He has been helpful, cre-
ative, and thoughtful, leaving a last-
ing imprint on the Center and its pro-
grams," Levin said. "This is truly a
historic day for the Center."

The Center's first director was for-
mer Supreme Court Justice Tom C.
Clark. Judges Alfred P. Murrah and
Walter E. Hoffman also preceded
Levin, who was appointed the Cen-
ter's fourth director in 1977. ■

THE

BRANCH

AO Recognizes Distinguished Service of
11th Cir. Employee in Bankruptcy Automation

AO Director L. Ralph Mecham has
recognized the distinguished service
of R. Ward Mundy of the Eleventh
Circuit Court of Appeals for his excep-
tional accomplishment in the field of
computerization in the bankruptcy
courts. Mr. Mecham publicly recog-
nized Mr. Mundy's contribution to
the federal bankruptcy system during
the Eleventh Circuit's Judicial Con-
ference in May.

Mr. Mundy contributed to con-
ceiving, accomplishing, installing,
and maintaining a microcomputer
system used in more than 60 federal
bankruptcy courts. The system, the
Bankruptcy Users Microcomputer
System, provides automated support
to small and medium-sized bank-
ruptcy courts in advance of the BAN-
CAP computer system designed by
the FJC. ■

The Source

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 ivriting,
accompanied by a self-addressed mailing label,
preferably franked (but do not send an envelope),
and addressed to Federal judicial Center,
Information Services, 1520 H Street, N.W.,
Washington, DC 20005.

Baker, Thomas E., and Douglas D.
McFarland. "The Need for a New National
Court." 100 Harvard L. Rev. 1400 (1987).

Brennan, William ]., Jr. "The Bill of
Rights and the States: The Revival of State
Constitutions as Guardians of Individual
Rights." 61 New York University L. Rev. 535
(1986).

Burger, Warren E. "Lawyers and the
Constitutional Convention." 34 Federal Bar
News & /. 106 (1987).

Cameron, James Duke, Isaiah M.
Zimmerman, and Mary Susan Dowling.
"The Chief Justice and the Court Admin-
istrator: The Evolving Relationship." 113
F.R.D. 442 (1987).

Federal Judicial Workload Statistics De-
cember 1986. Administrative Office of the
U.S. Courts, Statistical Analysis and Re-
ports Division, 1987.

Feinberg, Wilfred. "The Coming Deteri-
oration of the Federal Judiciary." 42 Record
of the Association of the Bar of the City of New
York 179 (1987).

Fish, Peter Graham. "Red jacket Re-
visited: The Case that Unraveled John J.
Parker's Supreme Court Appointment." 5
Ijiw & History Rev. 51 (1987).

Flanders, Steven. "Court Executives
and Decentralization of the Federal Judici-

ary." 70 judicature 273 (1987).

Ginsburg, Ruth Bader, and Peter W.
Huber. "The Intercircuit Committee." 100
Harvard L. Rev. 1417 (1987).

Higginbotham, A. Leon, Jr "The Life of
the Law: Values, Commitment, and
Craftsmanship." 100 Harvard L. Ren 795
(1987).

Hudon, Edward G. "Growing Pains and
Other Things: The Supreme Court of Can-
ada and the Supreme Court of the United
States." 17 Revue Generale de Droit 753
(1986).

Kaufman, Irving R. "The Creative Proc-
ess and Libel." New York Times Magazine,
Apr 5, 1987, at 28.

1^ Levin, A. Leo, and Sylvan A. Sobel.
"Achieving Balance in the Developing Law
of Sanctions." 36 Catholic University L. Rev.
587 (1987).

Miner, Roger J. "Federal Courts, Federal
Crimes, and Federalism." 10 Harvard J. of
Law & Public Policy 117 (1987).

Nichols, Philip, Jr "Selective Publication
of Opinions: One Judge's View." 35 Amer-
ican University L. Rev. 909 (1986).

Posner, Richard A. "Law and Literature:
A Relation Reargued." 72 Virginia L. Rev
1351 (1986).

Shadur, Milton I. "Are Federal Courts
Necessary?" 18 Loyola University L.j. 1
(1986).

Shapiro, David L. "In Defense of Judi-
cial Candor." 100 Harvard L. Rev. 731 (1987).
Wald, Patricia M. "Administrative Law
as Seen from the D.C. Circuit." (Interview
conducted by Jeffrey Lubbers.) 34 Federal
Bar News & j. 15 (1987).

Wald, Patricia M. "Some Thoughts on
Judging as Gleaned from One Hundred
Years of the Harvard Laiv Review and Other
Great Books." 100 Harvard L. Rev. 887
(1987).

Positions Available

Director, Staff Attorneys Office, 5th
Cir. Salary $53,83(>-69,976. Responsible
for recruitment, personnel, and manage-
ment decisions in 16-attorney office.
Must be graduate of accredited law
school (class standing upper third, or
law review), with 5 years' legal experi-
ence, management experience, or dem-
onstrated interpersonal skills. Apply im-
mediately by sending resume and refer-
ences to Steven A. Felsenthal, Director,
Staff Attorneys Office, Rm. 116, 600
Camp St., New Orleans, LA 70130.

Chief Probation Officer, N.D. Ohio
(Cleveland). Salary $45,763-72,500. Re-
sponsible for probation, parole, and pre-
trial services programs in the district (see
18 U.S.C. §§ 3654^3655). Requirements:
college educaHon (advanced degree pre-
ferred), 4 years' experience in personnel
work in a helping profession in appropri-
ate setting. Send letter of application and
resume by lune 4 to James S. Gallas,
Clerk, U.S. District Court, 102 U.S.
Courthouse, Cleveland, OH 44114.

Administrative Assistant for Space
and Facilities to Circuit Executive, 5th
Cir. Maximum grade: JSP-14. Position
responsible for all facets of facilities plan-
ning, design, coordination, scheduling,
and construction for circuit, district, and
bankruptcy courts of the circuit, in con-
junction with AO and GSA. Requires
minimum 3 years' professional experi-
ence and undergraduate degree. Experi-
ence in developing floor plans and office
layouts desirable. Extensive travel re-
quired. Send resume and salary history
by June 30 to Lydia G. Comberrel, Cir-
cuit ExecuHve, U.S. Court of Appeals,
600 Camp Street, New Orleans, LA
70130.

Circuit Librarian, 5th Cir. Maximum
grade: JSP-14. Manages staff of 14; re-
sponsible for administration of law li-
brary in New Orieans and satellite loca-
tions. Requires 3 years' specialized expe-
rience in law library management, and
M.L.S. or J.D. Send resume and salary
history by July 15 to Lydia G. Comberrel
at address in notice above.

EQUAL OPPORTUNITY
EMPLOYERS

BULLETIN OF THE
FEDERAL COURTS

^::-m'

LEGISLATION, from page 2

• Amend 28 U.S.C. § 1332(c), con-
cerning removal and diversity juris-
diction in cases involving legal repre-
sentatives of estates of decedents and
legal representatives of infants or in-
competents. The AO indicated in its
submission to Congress that in pro-
posing this revision of diversity juris-
diction, it did not intend to detract
from the separate legislation pro-
posing the abolition of diversity juris-
diction, as recommended by the Judi-
cal Conference.

• Ratify the long-standing treat-
-nent of bankruptcy judges and U.S.
nagistrates as officers not subject to
he provisions of the Federal Leave
\ct (5 U.S.C. §§ 6301-6323), and ex-
)licitly exempt from the act's provi-
ions law clerks for judges on the cir-
uit courts of appeals, district courts,
ind Claims Court and for bankruptcy
udges and magistrates.

• Amend 28 U.S.C. § 371 to permit
enior judges to receive military re-
ired or retainer pay to which they
/ould be entitled on the basis of reg-
lar or reserve military service.

• Amend 28 U.S.C. § 2254 to ex-
ressly provide that an application for

FJC Publishes Report
On 1984 Bail Reform Act

The Bail Reform Act of 1984, by
Deirdre Golash, the most recent of
the Center's publications designed
to provide information on the Com-
prehensive Crime Control Act of
1984, is now available.

The work summarizes appellate
court decisions interpreting provi-
sions of the Bail Reform Act from
Oct. 12, 1984, its effective date, to
Jan. 13, 1987. An appendix re-
produces the act, as amended by the
Criminal Law and Procedure Tech-
nical Amendments Act of 1986.

Copies of the report can be ob-
tained from Information Services,
1520 H St., N.W., Washington, DC
20005. Please enclose a self-
addressed mailing label, preferably
franked (7 oz.), but do not send an
envelope.

a writ of habeas corpus may be denied
on the merits, notwithstanding the
failure of the applicant to exhaust the
remedies available in the courts of the
state.

• Make certain amendments
needed to mesh provisions of 28
U.S.C. with the newly enacted
Federal Employees' Retirement Sys-
tem Act of 1986.

• Remedy a specific problem that
has arisen as a consequence of exist-
ing disqualification requirements and
their application in class action cases
in which it is discovered that the
judge's spouse, for example, owns a
small amount of stock of one of the
corporate parties to the litigation. Un-
der the proposed revision, judges
would be permitted to weigh the pub-
lic interest in completing the litigation
in determining whether to recuse
themselves. A waiver of disqualifica-
tion would also be permitted. Recusal
would continue to be automatic and
not waivable if the judge, judge's
spouse, or a minor child residing in
the judge's household had an interest
in the controversy that could be sub-
stantially affected by the outcome.

• Charge the director of the AO
with establishing a program of incen-
tive awards for designated employees
of the courts.

• Add to the U.S. Arbitration Act a
provision clarifying the appeals doc-
trine in the area of appeals of orders
relating to arbitration, generally deny-
ing immediate appeals from orders
giving arbitration precedence over liti-
gation, and permitting immediate ap-
peals from orders giving Htigation
precedence over arbitration.

• Abolish the Temporary Emer-
gency Court of Appeals.

• Repeal section 140 of Pub. L.
97-92, which has excluded judges
from the Executive Salary Cost-of-
Living Adjustment Act provisions ap-
plicable to other high-level federal of-
ficers (see The Third Branch, Oct. 1986,
p. 1).

The omnibus bill also contains the
following provisions relating to the
FJC:

Paper on Rule 11
Sanctions Available

Achieving Balance in the Developing
Law of Sanctions, a staff paper by
A. Leo Levin and Sylvan A. Sobel,
is now available from the FJC. The
article, reprinted from the current
issue of the Catholic University Law
Review, examines recent appellate
treatment of the sanctions provi-
sions of rule 11 of the Federal Rules
of Civil Procedure, describing pat-
terns that are emerging as a result of
the 1983 amendments.

Copies of the staff paper can be
obtained from Information Services,
1520 H Street, N.W., Washington,
DC 20005. Please enclose a self-
addressed mailing label, preferably
franked (4 oz.), but do not send an
envelope.

• Creates a Federal Judicial Center
Foundation to accept gifts to be used
by the FJC for the purpose of aiding its
work. None of the members of the
Foundation's board could be sitting
judges, and no gift funds could be
used to pay or supplement the sal-
aries of FJC officers or employees.

• Directs the FJC Board to conduct,
coordinate, and encourage programs
to collect, preserve, and make avail-
able materials relating to the history of
the federal judicial branch.

• Permits expenditure of FJC funds
on training of nongovernment per-
sonnel who would improve the opera-
tion of the judicial branch. Such non-
government personnel might include
individuals training as mediators or
arbitrators, or who agree to represent
indigent defendants.

Judgeships and diversity elimina-
tion. Director Mecham submitted
draft legislation to create 56 district
court judgeships and 13 court of ap-
peals judgeships. In submitting at the
same time the draft bill to eliminate
diversity of citizenship jurisdiction,
Mr. Mecham estimated that if Con-
gress eliminated diversity jurisdic-
tion, the number of additional district

See LEGISLATION, page 10

theTHDKDbkanch

SESSIONS, from page 1

shals, dispute resolution, consolida-
tion of Central Violations Bureau sites,
and any other matter on which the
Judicial Conference or the Committee
seeks information or guidance.

The Five- Year Plan for Automation
in the U.S. Courts has been an impor-
tant part of the comprehensive effort
to automate the federal courts. In the
four years the plan has been in effect,
has it functioned well?

Because the plan is a "living" plan
and continues to evolve and change
each year to meet the needs of the
courts and benefit from new tech-
nologies and circumstances, I believe
it has functioned well, notwithstand-
ing the difficult budgetary restraints
imposed by the Gramm-Rud-
man-Hollings legislation. The
strength, flexibility and viability of the
plan is demonstrated by two tremen-
dous adjustments made within the
last year: First, adding office and
chambers automation and telecom-
munications to data processing and
communications, and second, being
able to react to the tremendous pres-
sures brought on by the increase in
bankruptcy filings throughout the
United States necessitating the pri-
ority to complete the software for au-
tomation in the bankruptcy courts.

The role of the FJC in developing
bankruptcy court applications from
software systems for appellate and
district courts has been a tremendous
achievement, demonstrating the ab-
solute necessity of careful research
and development prior to implemen-
tation of projects.

In your opinion, what areas of
federal court operations are likely to
benefit most from use of automation?
It seems to me that any area of
federal court operations that can be
automated will benefit. The Central
Violations Bureau concept has proven
that with very few employees and
good automated equipment it is possi-
ble to efficiently manage, from eight
locations, the entire traffic violation
and ticketing process, from ticket is-
suance to hearing before a magistrate.

with great cost effectiveness and
amazing results.

Giving the bankruptcy court the
ability to have automated noticing,
docketing, and full and complete case
management reports will greatly en-
hance the bankruptcy court's ability to
meet the mushrooming caseload.

In any court — appellate, district,
magistrate, or bankruptcy-
electronic docketing enhances the
flow of information, enabling judges.

William S. Sessions

courtroom deputies, clerks, and su-
pervisors to efficiently manage case
flow and reporting in a fashion not
possible without automation.

Financial automation has revolu-
tionized the courts' abilities to deal
with jury vouchers, travel, and
reporting.

Last summer, your subcommittee
approved expansion of computer-
assisted legal research (CALR) to
courts with three judicial officers,
and CALR is now available to courts
with only two judicial officers. What
benefits are likely to result from this
expansion?

More and more judges recognize
the great benefits to be derived from
the most convenient access to CALR,
in chambers if possible. This ca-
pability, 1 predict, will revolutionize
the manner in which judges and law
clerks research the law. The ability to
"punch up" as opposed to "dig out"

the law, and to Shepardize quickly
and efficiently, and to have access in
the workplace, is a capability which
will generate phenomenal results and
in a few years will be the norm.

How has expanded use of automa-
tion affected the Western District of
Texas?

The Western District has seven, far-
flung divisions, and comprises the
largest geographic area of any district
court in the continental United States.
It includes San Antonio, the tenth
largest city in the country, and four
other smaller cities, Austin, El Paso,
Waco, and Midland-Odessa. The dis-
trict consistently maintains one of the
largest criminal caseloads per judge in
the United States. With limited judge
power, the automation of the criminal
system with terminals available in all
divisions will allow constant and easy
monitoring by the judges and court
personnel.

Automated case management re-
ports for both civil and criminal dock-
ets are available monthly or upon re-
quest, as well as special reports from
the civil calendars concerning every
phase of case management.

Every deputy clerk has some type
of experience with automated sys-
tems, and we are now installing the
new civil docketing system, which
will allow judges to have access to all
information on civil cases in each divi-
sion. Automation is now a way of life
in the Western District of Texas.

Is there a CALR pilot program in
your court and in Judge Bilby's court
in Tucson?

That is correct. There are two pilot
programs which are presently under
way. Judge Bilby's will be the first to be
installed. It has the same components
that the Western of Texas will have,
with one exception. It will have secre-
taries with personal computers for
word processing purposes; the law
clerks will have PCs for word process-
ing purposes, and for CALR there will
be an in-chambers PC to make it pos-
sible to have access to the data bases.
In addition, in the Western of Texas 1
will have a courtroom PC which will

BULLETIN OF THE
FEDERAL COURTS

have access to the clerk's data base.
This PC will not have word processing
capability or CALR capability. All of
these will be tied in so that informa-
tion can be exchanged — records from
the clerk's office to judges' chambers
and to the courtrooms.

Our work towards providing auto-
mation capability for all judges tends
to make me focus my attention prin-
cipally on what is available now. The
advance in technology in the past five
years has been dramatic, and I predict
that in the next 20 years it will be stun-

'The advance in technology in
dramatic, and I predict that in
stunning/'

the past five years has been
the next 20 years it will be

Why did they need the PCs right in
the courtrooin?

The judge's need for complete and
narrent docket and motion informa-
ion in the courtroom can be satisfied
mmediately if the PC is there. The
udge's notes, taken during the course
)f motions hearings and trial, can be
■ntered directly into the computer for
ecall at any time. The charge to the
ury, if it is on the personal computer,
an be changed and corrected at will. I
m confident that judges will find
fiany other uses for the personal com-
'Uter in the courtroom.

Do you find your colleagues recep-
ive to automation?

Generally speaking, yes. In January
f 1983, when Judge Weis of the Third
Circuit, Bankruptcy Judge McGuire of
lew York, and I were asked to serve a
vo-year term as an ad hoc Automa-
on Committee attached to the Judi-
al Improvements Subcommittee, I
'as presented with my first oppor-
inity to become aware of the nation-
ide reaction of judges to automation,
ind all of them are curious, and most

them are receptive to being per-
laded on the value of automation.
[y favorites are those who eageriy
id impatiently await enhanced auto-
ation in their own courts, not only
rough CALR capability but court-
ide through case management re-
>rting and access to the clerk's data
ises.

What advances in automation and
urt procedures do you see in the
deral courts five years from now, or
n to twenty years from now?

ning. As Alvin Toffler suggests in The
Adaptive Corporation, "Today's rapid
and massive changes I see as a 'third
wave' that is creating a wholly new
civilization based on high technology,
information, and new ways of
organizing for economic purposes."
The challenge to the judiciary is to be
able to discern which technologies
will be of the greatest benefit to the
federal courts and then to find appro-
priate applications.

As I mentioned, we are conducting
pilot projects providing for chambers
to have access to the clerk's data base
for case management purposes on a
day-to-day basis, together with CALR
for judges and law clerks. These sys-
tems will have an intra-chambers net-
work, providing capabilities never
available before in judges' chambers.
At the turn of the century, all judges'

perless" exchange of information.
High-speed readers and printers of all
descriptions will facilitate a free flow
of information between courts, attor-
neys, clerks, and the public, including
the media.

Can the state and federal court sys-
tems learn from each other in coping
with their caseloads, in development
of automation or in other areas?

Beginning in the late 1960s, the Law
Enforcement Assistance Administra-
tion provided substantial sums to the
states and the communities for de-
velopment of law enforcement related
systems. In many parts of the coun-
try, computer systems were de-
veloped to enhance the capability of
law enforcement as well as state
courts at various levels. As a result,
the states— and I emphasis the
states— made great strides and can
provide leadership to the federal
courts. Many state courts presently
make information available to attor-
neys and the public, providing for a
freer flow of information. I believe
great benefits will be derived in the
future from broad cooperation be-
tween state and federal courts in the
areas of automation. I certainly en-
courage the sharing of information
about new technologies, processes,
and procedures which can be mutu-
ally beneficial to the state and federal
systems.

"The challenge to the judiciary is to be able to discern
which technologies will be of the greatest benefit to the
federal courts and then to find appropriate applications."

chambers will routinely have that
capability.

Public access to court data bases for
use by attorneys and the public will be
routine. Eventually, attorneys, by use
of personal computers or other de-
vices in their offices, will have direct
access to the clerk's data base and will
be able to file documents directly from
the attorney's offices into the clerk's
data base. All this will make for a "pa-

Did you find that your experience
as a member of the FJC Board gave
you a better insight into the entire
federal court system?

My good fortune in being allowed
to serve as a member of the Board
from 1980 to 1984 provided me the
opportunity to be associated with
some of the most perceptive and
knowledgeable judges in the federal
See SESSIONS, page 8

theTHIRDbranch

SESSIONS, from page 7
courts. The Board was led by the most
innovative and dynamic Chief Justice
in the history of the United States,
supported by the sterling leadership
from Director A. Leo Levin and then-
Director William Foley of the Admin-
istrative Office. This association over
those years gave me an introduction
to the scope and magnitude of prob-
lems confronting the judiciary across
the country and emphasized the ab-
solute necessity of designing and
maintaining continuing education
and training programs for the judici-
ary and court family. The leadership
of the FJC in providing new and inno-
vative approaches for education and
training, involving new methods and
concepts, conhnues to be essential in
meeting the needs of the judges and
the courts.

Based on your experience in the
federal courts over a period of almost
13 years, what developments do you
anticipate for the system?

The continuing eruption of litiga-
tion and increased responsibilities
thrust upon the third branch by legis-
lation has put the courts in jeopardy
unless and until ways are found to
support the judiciary in a fashion
which will allow judges to dispense
justice and decide cases and issues
free of the unceasing press of admin-
istration and caseload. I am hopeful
that continued, meaningful liaison
with Congress and the Judicial Con-
ference will eventually bring about
procedures which will place some ad-
judicative responsibility, including
appeal, on other administrative
bodies and provide for selection and
replacement of judges, including
housing and support staffs, in a time-
ly fashion, i am also hopeful that Con-
gress will provide the mechanism to
assure that judicial salaries achieve a
reasonable parity with professional
incomes to help assure that the judi-
cial branch will not slowly slip from its
position as an acknowledged first-rate
judiciary. Should we fail, the constitu-
tional imperative of government un-
der law will be seriously, and possibly

irrevocably, eroded.

How has your management style
changed in the years you have served
as chief judge?

I do not know that my management
style has changed . Either a chief judge
is willing to share and delegate re-
sponsibilities or is not. I believe that
each head of a court family agency
must have a strong, hands-on man-
agement style which will build and
maintain a first-rate operation in that
agency's area of responsibility. I be-
lieve in close, daily if possible, contact

"I don't believe that any
one chief judge can de-
cide that there is a 'proper
managerial role' for every
chief judge. The role . . .
is, in great part, dictated
by the configuration and
size of the court."

and discussion with those agency
heads. With resident judges sitting in
five of the seven divisions, it is diffi-
cult to delegate areas of responsibility;
however, I believe it is important for
all judges to recognize that they con-
stitute a "court" and have the respon-
sibility for overseeing various aspects
of the court's operation for all of the
judges.

What do you see as the proper man-
agerial role of a chief judge? At what
level of detail should a chief judge
become involved in managing his or
her court?

I don't believe that any one chief
judge can decide that there is a "prop-
er managerial role" for every chief
judge. The role of the chief judge as a
manager is, in great part, dictated by
the configuration and size of the
court. The geographical size of the
district, the number of judges, as well
as the number of magistrates, divi-
sions, support offices, etc. tend to de-
termine the appropriate management
of the chief judge. If judges are sta-

tioned throughout a number of divi-
sions, it will require a different style of
management than in those districts
where all judges are centrally located.
A central location facilitates regular
judges' meetings, which are not feasi-
ble if they are dispersed.

An effective manager must adapt
his style to the circumstances of the
court. The judges of the Western Dis-
trict of Texas are extremely patient
with my never-ending flow of
memos, on a daily basis, reflecting my
action or requesting their input in
connection with the myriad activities
of the district. In the truest sense, they
share the office of the chief judge. I
simply happen to have the title.

Based upon the amount of time de-
voted to chief judge activities in a
seven-judge court, I believe it would
be extremely difficult for the chief
judge of a major metropolitan court to
be involved in the minutiae and detail
of the everyday operation of that
court. Great reliance must be placed
on a competent and innovative clerk;
an effective, efficient, first-class pro-
bation officer; and on wise, efficient,
and energetic magistrates, with each
of the activities monitored by a liaison
judge representing and reporting to
the court.

There is an unusual program in the
San Antonio division of the Western
District of Texas permitting court-
appointed attorneys to satisfy their
pro bono obligations to the court by
appearing in civil rather than in crim-
inal cases. How is this working out?
The current Plan for Appointment
of Counsel in Criminal and Civil
Cases in the San Antonio division was
adopted in August of 1985. The plan
provides an opportunity for attorneys
less experienced in criminal defense
to assist lead counsel as second-chair
counsel under the direction of lead
counsel. The plan further allows mag-
istrates to assign law students to assist
appointed counsel in criminal cases
and to report to the appropriate law
school authorities concerning the stu-

See SESSIONS, page 9

BULLETIN OF THE
FEDERAL COURTS

SESSIONS, from page 8
dent's support activities. The plan
also allows any attorney to satisfy the
appointment obligation by accepting
:ivil case appointments compatible
tvith the attorney's expertise.

It works very well. Probably in the
last year there have been a total of 15
appointments of lawyers in civil
rases. One aspect of the rule is inter-
?sting. We have taken from our non-
ippropriated fund — which is the
xind that is built from the fees paid by
ittorneys admitted to the court — and
lave provided for a payback of up to
i300 in unreimbursed expenses in-
iirred by counsel in representing di-
nts in civil cases.

What are your views on proposals
0 have a specialized federal court to
landle Social Security cases?

I think Justice Scalia is extremely
erceptive. The idea that he proposes
lay be an idea whose time has come,
believe there is no compelling reason
'hy many of those matters cannot be
ecided in the administrative law
Durts with a limited right of appeal.

ALENDAR

ne 1-5 Orientation for New Probation
and Pretrial Services Officers

ne 3-5 Regional Seminar for Probation
and Pretrial Services Officers

ne 3-6 Sixth Circuit Judicial
Conference

ne 8-9 Judicial Conference Subcom-
mittee on Judicial Statistics

ne 11-12 Judicial Conference Subcom-
mittee on Supporting Personnel

ne 15-16 Judicial Conference Subcom-
mittee on Federal Jurisdiction

ne 15-16 Judicial Conference Subcom-
mittee on Federal-State Relations

ne 25-27 Fourth Circuit Judicial
Conference

ne 29-30 Judicial Conference Adviso-
ry Committee on Civil Rules

le 29-July 1 National Management
Seminar for Chief Probation and
Pretrial Services Officers

ADR, from page 1

ability to go to trial should settiement
not be reached.

As summarized by the Claims
Court in its notice to counsel, mini-
trials should be employed only in
cases that involve factual disputes and
are governed by well-established
principles of law, and normally before
significant discovery commences. If
minitrial is used, each party will pre-
sent an abbreviated version of its case
to a neutral adviser — a judge other
than the presiding judge — who will
then assist the parties in negotiating a
settlement.

The procedures governing mini-
trials provide that each party should
be represented by an individual with
settlement authority and that any dis-
covery conducted should be expe-
dited and limited in scope. According
to the court, although minitrials will
be tailored flexibly to the require-
ments of each case, in most circum-
stances the entire process should con-
clude within one to three months. The
parties will meet with the minitrial
judge for a prehearing conference, at
which they will exchange brief writ-
ten submissions summarizing their
positions and narrowing the issues.
Hearings will be informal — the rules
of evidence and procedure will not
apply — and should generally not ex-
ceed one day.

The court welcomes comments
from the bar and public on its ADR
plan, and will consider such com-
ments and initial experience under
the order in its continuing effort to
further the effective administration of
justice.

D.C. Circuit mediation program.

Chief Judge Patricia M. Wald of the
D.C. Circuit has announced that the
court is implementing a civil media-
tion program on an experimental
basis, utihzing distinguished senior
members of the bar as mediators.

Pending civil cases, as well as cases
filed in the future, were to be selected
at random for assignment to media-
tion beginning May 8, pursuant to an

en banc order. Under that order, pro
se cases and cases involving multiple
parties or intervenors will not be in-
cluded. One of the key components of
the court's program is its emphasis on
maintaining confidentiality regarding
the mediation process. Accordingly,
program management has been
placed in the Circuit Executive's Of-
fice, which will be responsible for case
selection, program evaluation, de-
velopment of procedures, and liaison
between mediators and the court.

The impetus for the program arose
in the context of the court's extensive
revamping of procedures under its
1986 Case Management Plan. Judge
Laurence H. Silberman was named
chairman of the Subcommittee on Me-
diation, and was assisted by the
court's Advisory Committee on Pro-
cedures, headed by attorney Daniel
Gribbon.

The court's program will stress case
settiement, although partial settle-
ment of some issues or procedural
streamlining of cases will also be con-
sidered successful outcomes.
Throughout the settiement process,
normal case processing will continue
independentiy in the Clerk's Office,
placing some pressure on counsel to
arrive at a settlement decision before
briefing begins, while simultaneously
guaranteeing that a mediation case
will not lose its oral argument slot if
mediation fails. If necessary, arrange-
ments can be made to extend briefing
schedules or oral argument dates.

Under the terms of the court's en
banc order, counsel will be required to
provide some case documents to the
mediator, to prepare a short "position
paper" describing the case, and to at-
tend the initial mediation session.
Parties must be represented by some-
one with authority to enter into a set-
tlement agreement during the ses-
sion. Clients may attend, but are not
required to do so.

A list of the mediators selected by
the court and further information
about the program can be obtained
from Karen M. Knab, Circuit Ex-
ecutive, (202) 535-3340. ■

v•.•:;.•^^^•.■

THE

BRANCH

LEGISLATION, from page 5

court judgeships that would be

needed could be reduced from 56 to

15.

The creation of the 13 permanent
court of appeals positions and 40 per-
manent and 16 temporary district
court positions was recommended by
the Judicial Conference at its Sep-
tember 1986 meeting. The Con-
ference's recommendations were the
result of a nationwide survey of all
federal courts of appeals and district
courts conducted by the Conference's
Court Administration Committee be-
tween September of 1985 and July of
1986.

In a letter to the chairman of the
House Judiciary Committee, Director
Mecham stated, "In formulating this
set of recommendations in September
of 1986, the Conference deliberately
limited its request for additional judi-
cial positions to that number believed
to be absolutely essential; additional
positions have been requested for in-
dividual courts only in those in-
stances in which the Conference be-

lieves that those courts would be
unable to serve the public adequately
in the immediate future."

In other congressional action:
• Rep. Robert Kastenmeier (D-
Wis.) has introduced H.R. 2127, to
amend 28 U.S.C. to encourage
prompt, informal, and inexpensive
resolution of civil cases in U.S. district
courts by the use of arbitration. He
has also introduced H.R. 2128, to
amend 9 U.S.C. to improve the appel-
late process in federal courts of ap-
peals with respect to arbitration.
(H.R. 2128 is identical to the arbitra-
tion provisions in the omnibus bill
noted above.)

• The House Post Office Commit-
tee approved legislation designating
Sept. 17, 1987, as a legal public holi-
day marking the bicentennial of the
Constitution.

• Sen. Charles E. Grassley (R-Iowa)
introduced S. 1134, identical to the
"race to the courthouse bill" reported
to the full House (H.R. 1162) last
month by the House Judiciary Com-
mittee (see The Third Branch, April

1987, p. 2). Cosponsoring S. 1134
with Sen. Grassley are Sens. Strom
Thurmond (R-S.C.) and Dennis
DeConcini (D-Ariz.). ■

NOTEWORTHY, from page 3
the attorney argued that his conduct
was protected by the First Amend-
ment, that he was deprived of his right
to a hearing, and that there were pro-
cedural irregularities in the conduct of
the disbarment proceeding in the dis-
trict court. The Fourth Circuit dis-
agreed with all of these contentions
and affirmed the disbarment order,
stating that an appellate court owes
substantial deference to a district
court in matters of disbarment or
suspension.

Bankruptcy trustee entitled to de-
rived judicial immunity. A bank-
ruptcy trustee was held to be entitled
to derived judicial immunity absent
evidence that he acted outside the lim-
its of such immunity. Lonneker Farms,
Inc. V. Klobucher, 804 F.2d 1096 (9th Cir.
1986). ■

)i :

BULLETIN OF TOE FEDERAL COURTS

THETHM) BRANCH

Vol. 19 No. 6 June 1987

The Federal Judicial Center

Doliey Madison House
1520 H Street, N.W.
Washington, DC 20005

Official Business

First
Class
Mail

Postage and

fees paid

United States

Courts

U.S. GOVERNMENT PRINTING OFFICE 1987-181-221-60002

BULLETIN OF THE FEDERAL COURTS

GOVT. DOC.

THETHiroBRANCH

VOLUME 19
NUMBER 7
JULY 1987

[udge Martin Bostetter Discusses Educational ^ Chief Justice Urges
Veeds, Recent Changes in Bankruptcy Syst^ Rational Appeals

judge Martin V. B. Bostetter, Jr., was
om in Baltimore, and received his A.B.
nd LL.B. degrees from the University of
'irginia. He was appointed a U.S. bank-
iptcy judge for the Eastern District of
irginia in 1959 and has been a member of
le F]C Board since 1984.

In recent years there have been mo-
lentous changes in the bankruptcy
ystem — the Supreme Court's 1982
pinion in Northern Pipeline, the
ankruptcy amendments to the
ideral judgeship act of 1984, and ma-
>r legislation in 1986. Have these
/ents, plus ever-increasing case-
ads, transformed the life of a bank-
iptcy judge?

The original feeling was that the
orthern Pipeline case would bring
>out substantial changes and reduce
e caseload in the bankruptcy courts.

_di?i his recent speech to members of
~we American Law Institute, Chief

Martin V. B. Bostetter, Jr.
My experience has been that this is not
true. The caseload here has continued
to increase dramatically and this ap-
pears to be the situation nationally.
See BOSTETTER, page 6

ending Bill Would Expand FJC Role;
lagistrates' Retirement Bill Clears Congress

A bill that amends the governing
itute of the FJC has been introduced

the House by Rep. Robert W.
istenmeier (D-Wis.). The bill, H.R.
67, would create a Federal Judicial
'nter Foundation with authority to
:ept and receive gifts for the Center,
thorize the Center to implement a
story program for the judicial
inch, provide limited authority for
ining for persons outside the judi-
1 branch, and provide for the ap-
intment and compensation of the
puty director of the Center. These
lendments were unanimously rec-
imended by the Center's Board,
rhe proposal to establish a founda-
n with authority to receive gifts for
? Center was developed by a com-
ttee chaired by former judge Philip

Tone. The foundation would be
ected by a board, none of whose
mbers would be sitting judges.
e provision was fashioned in this

way so that the Center and its govern-
ing body would be sufficiently insu-
lated from any procedure for accept-
ing gifts from private sources to
safeguard both the independence and
the appearance of independence of
the judiciary.

FJC Director A. Leo Levin testified
in support of the proposed amend-
ments to the Center's statute at an
oversight hearing of the House Judi-
ciary Committee's Subcommittee on
Courts, Civil Liberties, and the Ad-
ministration of Justice. The subcom-
mittee also welcomed Judge John C.
Godbold, who has been elected to
succeed Professor Levin as FJC direc-
tor, and who will take office on
Aug. 1. Deputy Director Charles
Nihan also participated in the
hearing.

Other developments on Capitol

See LEGISLATION, page 2

^^' Court, Repeal of
^ ^<3'^owrf's Mandatory
^^^fiirisdiction

# .^ . ^......, .....

\ ^"^ i^^ Rehnquist has urged that the
v>^^ ,^*ftaining mandatory jurisdiction of
^ the Supreme Court be abolished, thus
giving the Court more latitude in
choosing which cases to decide each
year. He also reiterated his support for
a national court of appeals, stating his
preference for a new court whose
judges would be nominated by the
President and confirmed by the
Senate.

The Chief Justice noted that the last
major revision of the jurisdiction of
the Supreme Court was in 1925. Since
then, the number of decisions turned
out by the federal courts of appeals
and by the highest courts of the states
has increased dramatically. The Court
has been able to decide up to about
150 cases each term on the merits, the
Chief Justice said, but this "really is
the maximum."

"Today we decline to review cases
involving important questions of
federal law not previously decided by
our Court, cases which the Court
would have unquestionably heard

See REHNQUIST, page 5

Inside . . .

New Circuit Executives
In Ninth and Tenth Cirs.

p. 3

AO Director Commends
Employees' Cost-Saving
Computer Purchase p. 4

1987 Audiovisual

Media Catalog

Published by FJC p. 4

THE

BPANCH

NEWS

FROM

THE

Sentencing
Commission

The Sentencing Commission in
June distributed draft worksheets for
sentencing guidelines application to
Article III judges, U.S. attorneys, pub-
lic defenders, U.S. magistrates, chief
U.S. probation officers, and U.S. pro-
bation offices. The worksheets are
part of a packet that includes several
examples applying the guidelines to
actual cases.

Feedback on these draft work-
sheets, designed to enhance under-
standing the guidelines' operation.

will be helpful to the commission in
developing final worksheets for use
when the guidelines are imple-
mented. The draft worksheets and il-
lustrative cases are the first steps in
developing a comprehensive work-
book for probation officers, judges, at-
torneys, and others to use in applying
the guidelines.

The commission is also disseminat-
ing a supplementary report that fur-
ther explains its guidelines and policy
statements; details the effects on
federal prison population of the
guidelines, the 1986 Anti-Drug Abuse
Act, and the career offender provi-
sions of the Sentencing Reform Act;
analyzes disparity in sentencing; and
addresses a variety of other topics. ■

200Wt

LEGISLATION, from page 1

Hill of interest to the judiciary include
these:

• H.R. 1947, to provide enhanced
retirement credit for U.S. magistrates,
to be equal to the benefits provided
bankruptcy judges, was passed in
both the House and Senate and was
signed by the President on June 18 as
Pub. L. No. 100-53.

• Rep. Robert Kastenmeier intro-
duced H.R. 2586, which would
provide a new retirement system for
magistrates and bankruptcy judges,
similar to that of the territorial judges.

• Rep. James A. Traficant, Jr.
(D-Ohio) introduced H.R. 2227, to
make- the salaries of bankruptcy judg-
es equal to those of Article III federal
district judges; the bill is before the
House Judiciary Committee.

($.

THETHIRD BRANCH

Published monthly by the AdministraHve 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 2(K)05.

Co-editors

Alice L. CyDonnell, Director, Division of Inter-
Judicial Affairs and Information Services,
Federal Judicial Center. Peter G. McCabe,
Assistant Director, Program Management,
Administrative Office of the U.S. Courts.

• AO Director L. Ralph Mecham
has transmitted to Congress a draft of
proposed legislation to make im-
provements in the federal court inter-
preter program.

• The House passed H.R. 1162,
providing for random selection of a
court of appeals to hear appeals in the
so-called "race to the courthouse" sit-
uation (appeals to multiple circuits,
filed with respect to the same agency
order). The bill is awaiting Senate
action.

• The Civil Rights Restoration Act
of 1987, S. 557, was ordered reported
favorably (with amendments) to the
full Senate by the Senate Labor and
Human Resources Committee. The
bill is in response to the Supreme
Court's 1984 Grove City College deci-
sion, and would broaden the coverage
of certain civil rights statutes beyond
the scope accorded them by Grove
City.

• Rep. John Conyers, Jr. (D-Mich.)
has introduced H.R. 2515, to amend
18 U.S.C. ch. 215 to allow counsel to
accompany a witness into a grand
jury room, and the House Judiciary
Committee's Subcommittee on Crimi-
nal Justice has held a hearing on the
measure.

• Sen. Howell Heflin (D-Ala.) has
introduced S. 1248, a bill to make
technical amendments to the State

# # • • # ^
• •

July 1 787: What became Article III of
the Constitution took substantial
shape from July 18 to 21, as the Con-
vention voted to create a "supreme
tribunal" and authorize the legis-
lature to create "inferior tribunals " It
agreed on presidential nomination
and senatorial confirmation of the
judges, despite George Mason's fear
that "appointment by the Executive
. . . might even give him an influ-
ence over the Judiciary department
itself."

The convention unanimously en-
dorsed tenure during good behavior
but struggled over a prohibition
against lowering or increasing judg-
es' salaries. Benjamin Franklin
would have allowed increases be-
cause "Money may not only become
plentier, but the business of the de-
partment may increase as the Coun-
try becomes more populous."
Madison, though, worried that al-
lowing Congress to raise salaries
could create a judicial dependence
on the legislature. If members of
Congress were parties to federal liti-
gation, "the Judges will be in a situa-
tion which ought not to [be] suf-
fered." The problem of an inflated
currency could be avoided "by tak-
ing for a standard wheat or some
other thing of permanent value." But
the convention, six votes to two,
sided with Gouverneur Morris:
"The value of money may not only
alter but the State of Society may
alter. . . . The Amount of salaries
must always be regulated by the
manners & the style of living in a
Country. . . . Additional labor alone
in the Judges can provide for addi-
tional business. Additional compen-
sation therefore ought not to be
prohibited."

BICENTENNIAI. OF

Justice Institute Act of 1984. Om
provision of S. 1248 would create ;
new section in the act to protect th
confidentiality of information mad
available to persons conducting re
search under a grant from the In
stitute. '

BULLETIN OF THE
FEDERAL COURTS

Ninth and Tenth Circuit Courts of Appeals
Appoint Bremson, Murret as Circuit Executives

Eugene J. Murret has been elected
circuit executive for the Tenth Circuit
Court of Appeals by the Judicial
Council of the
circuit and will
enter on duty
Aug. 1, 1987.
Mr. Murret suc-
:eeds Emory G.
Hatcher, who
•etired last
December.

For the past
lixteen years
»/Ir. Murret

erved as the ju- Eugene J. Murret
licial administrator for the Supreme
lourt of Louisiana. He holds a B.A.
rom Loyola University of New Or-
gans, a J. D. from Loyola Law School,

NOTEWOR

THY

Local rule on judicial approval of pros-
cutors' subpoenas of lawyers upheld.

he First Circuit Court of Appeals has up-
eld a local rule adopted by the U.S. Dis-
ict Court for Massachusetts that requires
prosecutor to obtain prior judicial ap-
roval to subpoena an attorney to a grand
iry for evidence about a client of the at-
)rney. United States v. Klubock, No.
3-1413 (1st Cir. Mar. 25, 1987). The district
)urt in 1986 amended its local rules to
iclude such a requirement, which had
ready been adopted by Massachusetts's
Lipreme Judicial Court. The district
)urt's local rule was challenged by the
nited States and various federal pros-
rutors. They claimed that the local rule
olated the supremacy clause of the Con-
itution because it allegedly conflicted
ith the Federal Rules of Criminal Pro-
■dure, and was therefore invalid as both a
ate court rule and as a local federal court
lie.

The First Circuit found the supremacy
Juse argument moot. The prosecutors
id claimed that as members of the state
ir, they might be vulnerable to state disci-
inary charges for actions taken outside
Massachusetts. The court took note of
e state bar counsel's announced policy

and an LL.M. from New York Univer-
sity School of Law. Mr. Murret has
been active in the ABA, has taught law
at Loyola Uni-
versity School
of Law, and has
served as an in-
structor in judi-
cial administra-
tion at Tulane
University.

Francis L.
Bremson en-
tered on duty as
circuit executive
for the Ninth
Circuit on March 27. Previously
Mr. Bremson served as executive di-
rector of the Alaska Judicial Council;
See BREMSON, page 8

Francis L. Bremson

that the rule would not be applied against
any federal prosecutor for any action
taken extraterritorially, and held that
while such a policy is in effect, there is no
supremacy clause case or controversy. As
to the federal district court's rulemaking
power, the appeals court held that the rule
"is a reasonable regulation of the dynam-
ics that underiie the adversarial process,"
and a "limited, reasonable response to
what appears to be a mounting profes-
sional problem."

Local rule concerning discovery in pris-
oners' pro se petitions held invalid. A lo-
cal rule of the U.S. District Court for the
Eastern District of Arkansas, requiring
leave of court before allowing invocation
of discovery processes in cases of pro se
prisoners' petitions brought under section
1983, has been held invalid. Holloway v.
Lockhart, 813 F.2d 874 (8th Cir. 1987). The
rule was held to be in conflict with the
Federal Rules of Civil Procedure.

Plaintiff may not withdraw consent to
trial before magistrate. There is no abso-
lute right to withdraw validly given con-
sent to a trial before a magistrate, the Fifth
Circuit held in an appeal of an employ-
ment discrimination lawsuit. The plaintiff
had sued her employer under title VIl,
and the parties opted for trial before a
magistrate under 28 U.S.C. § 636(c).
Shortly before trial, the plaintiff attempted
to withdraw her consent to trial before a

Administrative Orientation

Programs Initiated for Chief

Bankruptcy Judges

The AO and the FJC have initiated
a program of orientation sessions for
chief bankruptcy judges. Three
chief bankruptcy judges attended
the first-ever such session in April,
and a second orientation session
was held in June for another group
of judges.

The sessions, which are similar to
those for newly appointed chief
judges of circuit and district courts,
are designed to provide the judges
with background information to as-
sist them in discharging their ad-
ministrative responsibilities as chief
judges. Meetings were held with
the director and deputy director of
the AO, with each assistant director,
and with various division and
branch chiefs who manage the indi-
vidual programs that provide sup-
port to the bankruptcy courts. Brief-
ings on programs and services of the
FJC were provided by key FJC
officials.

The FJC is presently preparing a
Desk Book for Chief Judges of the United
States Bankruptcy Courts.

magistrate. The magistrate denied the mo-
tion and at trial found against the plaintiff
on the merits. The plaintiff appealed both
the decision on the merits and the refusal
to permit her to withdraw her consent to
trial before a magistrate. She did not deny
that her consent was valid when made, but
alleged that she had a "right" to withdraw
her consent. "We find nothing in the stat-
ute . . . that would allow a party to express
conditional consent to a reference [of a
case to a magistrate], thereby obtaining
what amounts to a free shot at a favorable
outcome or a veto of an unfavorable out-
come," the Fifth Circuit held. Carter v. Sea
Land Services, 816 F2d 1018 (5th Cir 1987).
S.D.N.Y. report. Chief Judge Charles L.
Brieant (S.D.N.Y.) has released the 1986
Court Report detailing various aspects of
the court's business during 1986. During
the statistical year July 1, 1985, to June 30,
1986, there was a 5.5 percent increase in
the number of civil and criminal filings, to
a total of 11,828. The combined number of
terminations rose 13 percent to 11,531.
See NOTEWORTHY, page 5

theTHIKDbpanch

AO Director Mecham Recognizes Group's Efforts
Resulting in Cost Savings on Computer Purchase

AO Director L. Ralph Mecham has
presented the Director's Special
Award to a group of employees whose
efforts resulted in substantial savings
in a computer purchase contract. Re-
ceiving the award were Ellen Bartelt,
Cristin Birch, and Judy Steele of the
AO and John Brinkema of the FJC for
their work on the procurement of
computer systems for the Federal
Court Automation Project (FEDCAP)
from December 1984 through April
1986.

Ms. Bartelt, Mr. Birch, and
Mr. Brinkema defined, developed,
and refined the specifications for com-

puter equipment and systems soft-
ware. They then served as the tech-
nical evaluation committee that ul-
timately selected and awarded the
FEDCAP contract. Ms. Steele served
as the contract specialist and the con-
tact point for all vendor inquiries, par-
ticipated in nationwide equipment
performance evaluation tests, and
completed the cost evaluation por-
tion of the selection process. Their
combined efforts resulted in a con-
tract enabling the courts to buy up to
120 computers at a price 40 percent
lower than had originally been antici-
pated. ■

Judge Holds Attorney in Contempt for Refusal to
Proceed with Summary Jury Trial

The U.S. District Court for the
Southern District of Illinois has held
an attorney in criminal contempt for
failure to comply with the court's
order that he participate in the selec-
tion of a jury for a summary jury trial.
Strandell v. Jackson County, Civ. No.
85-4159 (S.D. 111. Apr. 17, 1987). Ac-
cording to a final pretrial order in the
case, a trial of the matter would have
taken 20 to 25 days. The court, citing
its heavy caseload, including a
number of criminal cases subject to
the Speedy Trial Act, ordered the par-

ties to proceed with a nonbinding
summary jury trial. Plaintiff's counsel
objected to the procedure and filed a
motion claiming that the court was
powerless to compel the parties to en-
gage in it. The court concluded that its
authority to require participation in
the procedure derived from Fed. R.
Civ. P. 1, 16(a)(1), 16(a)(5), and
16(c)(ll), the court's inherent power
to manage and control its docket, and
a 1984 resolution of the Judicial Con-
ference, and fined plaintiff's counsel
$500 for his contempt. ■

TheSource

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 mailing label,
preferably franked (but do not send an envelope),
and addressed to Federal judicial Center,
Information Services, 1520 I! Street, N.W.,
Washington, DC 20005.

Committee on Federal Courts. "Reme-
dying the Permanent Vacancy Problem in
the Federal Judiciary: The Problem of Judi-
cial Vacancies and Its Causes." 42 Record of
the Association of the Bar of the City of New

York 374 (1987).

i^ Marshall, Thurgood. "Remarks at
the Annual Seminar of the San Francisco
Patent and Trademark Law Association in
Maui, Hawaii, May 6, 1987."

»^ Pieras, Jaime, Jr. "Judicial Economy
and Efficiency Through the Initial Sched-
uling Conference: The Method." 35 Cath-
olic University L. Rev. 943 (1986).

1^ Rehnquist, William H. "Boston Uni-
versity Commencement Address, May 17,
1987."

1^ Rehnquist, William H. "Remarks at
the Sixty-Fourth Annual American Law
Institute Meeting, May 19, 1987."

Rosenberg, Maurice. "Chief Judge
Wilfred Feinberg: A Twenty-Fifth Year
Tribute" 86 Columbia I.. Rev. 1505 (1986).

1987 Audiovisual Media
Catalog Available from FJC

The Center recently published
the 1987 Catalog of Audiovisual Media
Programs, a revision of the 1985 cata-
log. This new edition has been up-
dated with new audiocassettes, vid-
eocassettes, instructional software,
and films available for loan to federal
judicial personnel only from the me-
dia library of the Center's Informa-
tion Services.

Catalog items are grouped by sub-
ject matter and include recordings of
Center seminars and workshops,
specially produced Center media
programs, and programs from com-
mercial sources and other govern-
ment agencies. The catalog does not
list all, or even most, presentations
at Center seminars; programs have
been selected on the basis of their
topicality and level of past use.

The catalog's introduction de-
scribes the organization of the mate-
rials listed and includes directions
for requesting items, a reproducible
request form, and a checklist for use
in setting up a VCR.

Copies of the catalog have been
distributed 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 In-
formation Services, 1520 H St.,
N.W., Washington, DC 20005.
Please enclose a self-addressed
mailing label, preferably franked
(5 oz.), but do not send an envelope.

von Hirsch, Andrew, Kay A. Knapp,
and Michael Tonry. The Sentencing Commis-
sion and Its Guidelines. Northeastern Uni-
versity Press, 1987 [analysis and sugges-
tions for state sentencing guidelines
efforts, based on the experiences of Wash-
ington, Pennsylvania, and Minnesota].

Wilkinson, J. Harvie, III. "Address at the
FBA Fourth Circuit Court of Appeals Con-
ference Banquet." 34 Federal Bar News & ]■
109 (1987).

BULLETIN OF THE
FEDERAL COURTS

CALENDAR

une 29-JuIy 1 National Management
Seminar for Chief Probation and
Pretrial Services Officers

uly 6-9 Video Orientation Seminar for
Newly Appointed District Judges

uly 8-10 Seminar for Magistrates of the
Sixth, Seventh, and Eighth Circuits

Illy 8-10 Judicial Conference Commit-
tee on the Administration of the
Probation System

ily 9 Judicial Conference Committee on
Rules of Practice and Procedure

ily 12-25 Summer Trial Practice In-
stitute (Session 2) (for new assistant
defenders)

ily 13-14 Judicial Conference Commit-
tee on the Administration of the
Criminal Law

ily 13-15 Workshop for Personnel
Officers

ily 14-15 Staff Safety Program (W.D.
Mo.)

Jy 14-17 Workshop for New Training
Coordinators

ly 16-18 Eighth Circuit Judicial
Conference

ly 20-21 Judicial Conference Commit-
tee on Court Administration

ly 20-24 Orientation for New Proba-
tion and Pretrial Services Officers

ly 21-22 Staff Safety Program (N.D.
Tex.)

ly 23-24 Judicial Conference Commit-
tee on Judicial Ethics

ly 29-31 Tenth Circuit Judicial
Conference

•g- 3-4 Judicial Conference Commit-
tee on the Operation of the Jury
System

ig. 3-5 Circuit Case Initiation and
Processing

Position Available

Staff Director, U.S. Sentencing Com-
mission. Salary to GS-18. SubstanHal ex-
perience in criminal law or criminal
justice required. Principal respon-
sibilities include staff supervision and
coordination of all commission activities,
mcluding guideline promulgation and
research. Apply to William W. Wilkins,
|r. Chairman, U.S. Sentencing Commis-
sion, Suite 1400, 1331 Pennsylvania
Ave., N.W., Washington, DC 20004.

EQUAL OPPORTUNITY
EMPLOYER

REHNQUIST, from page 1

and decided as little as thirty years
ago," the Chief Justice said. "[W]e are
simply unable to take and decide
many cases which raise important
and undecided issues under the Con-
stitution and the statutes of the
United States."

Noting the "debate and . . . consid-
erable opposition" that have sur-
rounded previous proposals for a na-
tional court of appeals, the Chief
Justice said that he nonetheless re-
mains "confident that in due course
we will have" such a court.

When Chief Justice Burger first pro-
posed a plan for a national court of
appeals, he suggested that the body
be created on a temporary basis and
constituted with presently sitting
judges of the various courts of appeals
around the country. Chief Justice
Rehnquist noted that that proposal
"poses knotty problems of how these
judges are to be chosen." Thus, while
he could accept "any sensible pro-
posal" for choosing the judges, he be-
lieves that "eventually we must recog-
nize that the need is for a new court
whose judges should be nominated
by the President and confirmed by the
Senate."

The proposal to repeal the Court's
mandatory jurisdiction, the Chief Jus-
tice said, has "all nine members of our
Court . . . solidly behind it, and so far
as I know there is little or no opposi-
tion to it in any segment of the legal
community." The Chief Justice esti-
mated the benefit to the Court that
abolition of mandatory jurisdiction
would have, using as an example the
last five terms of court. During those
terms, the cases decided on the merits
that came by way of appeal, rather
than by way of certiorari, averaged
about 35 per term. Were mandatory
jurisdiction to be abolished, even as-
suming that the Court would have
granted certiorari in half of those 35
cases, the abolition of mandatory ju-
risdiction could still be expected to
give the Court 15 or 20 new "slots" for
other important cases to be reviewed,
the Chief Justice observed. ■

Personnel

Nominations

Jerry E. Smith, U.S. Circuit Judge, 5th

Cir., June 2
John D. Tinder, U.S. District Judge, S.D.

Ind., June 2

Confirmations

Richard J. Daronco, U.S. District Judge

S.D.N.Y, May 7
David S. Doty, U.S. District Judge, D.

Minn., May 7
Ronald S.W. Lew, U.S. District Judge

CD. Cal., May 7
Reena Raggi, U.S. District Judge

E.D.N.Y, May 7
Haldane R. Mayer, U.S. Circuit Judge,

Fed. Cir., June 11
Layn R. Phillips, U.S. District Judge, W.D.

Okla., June 11

Appointments

Edward Leavy, U.S. Circuit Judge, 4th

Cir., Apr. 8
Malcolm R Marsh, U.S. District Judge, D.

Or, Apr. 16
David S. Doty, U.S. District Judge, D.

Minn., May 8

Senior Status

William C. Conner, U.S. District Judge,

S.D.N.Y, Mar. 31
James E. Barrett, U.S. Circuit Judge, 10th

Cir., Apr. 8

Death

Noel P Fox, U.S. District Judge, W.D.
Mich., June 3

NOTEWORTHY, from page 3

The number of filings per authorized
judgeship increased from 415 to 438. In
1986 there were two vacancies in the
court's complement of judgeships, and
there were four additional positions au-
thorized by Congress that had not been
filled at the time of the report's release.
"Filling these vacancies is critical if this
overworked court is to discharge its re-
sponsibilities," Judge Brieant wrote in the
Report's introduction. The Report also
summarizes the work of the court's vari-
ous committees, and of the District Court
Executive's Office, Clerk's Office, Proba-
tion Department, Pretrial Services Agen-
cy, and Bankruptcy Clerk's Office. ■

THE

BFANCH

a '

BOSTETTER, from page 1

One of the factors is the ever-
increasing use of the bankruptcy code
as a major implementation in reorgan-
ization cases. For instance, since the
Bildisco case, labor contracts have been
involved in the bankruptcy courts' ju-
risdiction, and more creative use of
the bankruptcy laws by the bar — in
particular by knowledgeable, sophis-
ticated attorneys in the larger areas-
has brought about a very, very great
increase. We have seen a more and
more liberal interpretation of what a
core proceeding is. If the matter is a
core proceeding, there is no question
that a bankruptcy court has jurisdic-
tion to hear it. The related matters can
also be heard by the bankruptcy
court. What is a related matter also has
been interpreted broadly. Taken to-
gether with holdings that objections
to jurisdiction must be raised early in
the proceeding, there is no question
but that this tends to give more work
to the bankruptcy courts.

I think the general conclusion
would be that there has been an ever-
increasing workload, caused not just
from the standpoint of numbers of
cases filed but also by the breadth of
jurisdiction. I find that I am essentially
handling the same types of cases that I
handled prior to the Northern Pipeline
decision but that the caseload is much
heavier.

The Administrative Office reports
that during 1986 bankruptcy petition
filings were up 28 percent above 1985.
How does this increase in filings
make itself felt on a day-to-day basis?
There are several aspects here that
we have to consider. Number one,
when you get additional heavy fil-
ings, that causes a backlog, and until
you get the people authorized, hired,
and trained, you really aren't starting
to cut into the backlog. The AO is now
reviewing the situation quarterly,
which is very helpful, so that if we get
heavy increases in filings in a given
quarter it alerts them to the situation
and they are able to grant authoriza-
tion more quickly. The hiring and
training process, however, takes

about six months. During this time it
is necessary to divert other personnel
from their duties to help train, and
that can create an even greater back-
log, so it is a very difficult problem.
During the training period you can
choose to reduce certain services to
the public— for example, some courts
only answer the telephone during
certain periods of time. Another pos-
sibility is to eUminate certain func-
tions that are accomplished in the
clerk's office. This usually results in
case closings being neglected, but that
many times is the only alternative. So
the overall effect is a reduction in serv-
ices to the public as well as a reduction

"One of the things we are
trying to do at the Center
with bankruptcy educa-
tion is weave in more case
management and control
of calendar techniques/'

in the functions of the clerk's office
itself.

Some of the courts have begun
maintaining a hiring register on
which they keep the names of eligible
persons. They maintain these names
so that they can hire a new person as
soon as possible.

In this regard, under the direction
of Mr. Mecham, the AO has become
more and more helpful and cooper-
ative, not only in personnel matters
but in matters generally. The attitude
is very, very good. I think the rela-
tionship between the bankruptcy
courts and the Administrative Office
is the best that 1 have ever seen in my
28 years in the bankruptcy court.

Congress authorized the creation
of 52 new bankruptcy judgeships in
1986; funding has passed both houses
of Congress and the supplemental
appropriation measure is now before
a conference committee. Will this
help significantly?

Ultimately it will certainly help.
However, it will take some time before
we will feel the impact. The period of
selection is only the first step and that

can take anywhere from three to sbc
months. After the selection, there
must be an FBI clearance, and the IRS
is required to check the nominee as to
any tax problems. Then the period
from the time he is sworn in until
there is really some benefit to the pub-
lic depends on the experience of the
person that has been appointed. I
would say that the minimum period
before the judge is comfortable in the
position is about six months. One of
the things we are trying to do at the
Center with bankruptcy education is
weave in more case management and
control of calendar techniques, be-
cause this seems to be the area where
we can make our judges, especially
new judges, most proficient more
quickly. If they attain proficiency in
this area it will really help them attain
maximum efficiency.

Will salary increases for the bank-
ruptcy judges help stabilize the
bankruptcy court system?

Yes. In order to attract well-
qualified individuals, you have to of-
fer proper compensation, and if you
consider that a majority of the judges
still have children who are either
going into college before long or are
presentiy in college, and if there are
two or even three in college at the
same time with the present salary, it
virtually becomes impossible to live
within the standard to which you
should be entitied. In recent years,
bankruptcy judges have been paid
from 86 percent to almost 92 percent
of the district judges' salaries. Under
the recent recommendation, however,
bankruptcy judges' salaries were in-
creased by only 2.8 percent this year,
and this fell disproportionately to
only 81 percent of a district judge's
salary. With the cost of living, it is just
impossible to attract well-qualified
people who could be out making
$250,000 or more in private practice.
Another factor to be considered is
that a proper salary not only attracts
well-qualified applicants but helps
keep them in the system. This, in ad-
dition to a good retirement system, is
absolutely essential to a stable sys-
tem. There is presentiy a retirement

)ill pending which would be non-
lontributory and, I think, vest at 14
'ears. This is the type of retirement
>ill that should be enacted and is
■qually as important as salary for ob-
ious reasons.

What has been the experience of
he bankruptcy courts since the new
Chapter 12 dealing with the family
inner?

My court is not in a rural area, so I
ave had very few Chapter 12s. I un-
erstand, however, that in at least one
ther court they have had approxi-
lately 150 filings, and have con-
rmed about 80 percent of them; that
lere is very good cooperation from
\e Farmers Home Administration
nd it appears to be working very
ell.

An interesting sidelight to that is
lat in some of the other courts the
?btor's indication that he might file a
hapter 12 case has increased the pos-
bility of working out the situation
itside of the court. In other words, it
IS encouraged the creditors to go
ong with the debtor's plan that he
oposed without going through a
rmal court proceeding, so even the
reat of a Chapter 12 has had some
fects also.

From what I understand, the sys-
tn seems to be working. One of the
iues that has arisen is eligibility —
lat are agricultural products. There
also the issue whether or not you
n convert from a Chapter 11 to a
iapter 12. The courts seem to be just
out evenly divided on whether or
t there can be a conversion.
As a member of the Court Admin-
ration Committee of the Judicial
inference, would you propose that
; Conference suggest the legisla-
n be amended to clarify Congress's
ent on conversion?
rhere is a Bankruptcy Committee
bcommittee that I would think
'uld want to propose that. If 1 were a
■mber of that committee I would
tainly suggest it.

rhe U.S. trustee system is now in
' Department of Justice. Do you
nk this is a good change?
Veil, if we remember the initial

premise, which was that the trustees
should have independence from the
bankruptcy courts, then it seems to
me that the legislation is proper from
that standpoint. The independence of
the U.S. trustee removes the trustee
panel from control of the court. The
court having control is in direct op-
position to the concept of having such
an independent trustee system, and it
is impossible to give the appearance
of total independence when the court
is appointing and supervising the
trustees.

On the whole, I think the change is
a good one. I know that there is a wide
variety of opinions as to whether or

"[T]here is very good co-
operation from the Farm-
ers Home Administration
[on family farmer cases]
and it appears to be work-
ing very well/'

not it is a good system. However, 1
speak from the pilot system that we
had here, which combines the Eastern
District of Virginia with the District of
Columbia. 1 felt and still feel that our
pilot trustee program here has work-
ed very well. One of the problems has
been underfunding. Congress took
away, or the U.S. trustee system lost,
a lot of their funding, and they had to
reduce many of the services. It is hard
to judge whether or not a machine is
running well if you don't spend suffi-
cient monies to maintain it properly.
This makes it very difficult to judge its
overall quality But I would say that
the trustee system is definitely one
that can be utilized as an important
part of the bankruptcy court system,
which includes, among other things,
examination of requested fees. The
U.S. trustee in this district examines
applications by attorneys and other
professional persons for compensa-
tion as counsel for the debtor and the
like. In addition, they have been very
helpful in monitoring Chapter 11
cases to see that they move along on a
proper basis, to assure that, among

■ 7

BULLETIN OF THE /TfTK
FEDERAL COURTS *^1^

other things, debtors file their
monthly reports on time. Thus, given
the proposition that the trustees
should be independent, the system, if
properly utilized and properly
funded, I think can be a very good
one.

You recently assisted the Center by
chairing the seminar held at Hershey
and attended by 50 new bankruptcy
judges. What were some of the con-
cerns of the judges?

The principal reason for my attend-
ing these seminars and sharing my
ideas with other judges is that I want
to get feedback from the judges as to
what subjects and presentations are
most helpful to them. I want to be
sure that we are really helping them;
to find out how we can improve; and
in what areas they need help that they
are not getting. There are two things
to learning: One is the teaching and
the other is the learning. The presen-
tation by the lecturer can be a very
crucial part. The lecturer should give a
live presentation in an understand-
able way, so that the recipient can as-
similate what is being presented.
When people write down their eval-
uations about the presentations, they
have trouble being critical and putting
it in writing.
They are anonymous, aren't they?
Well, you are supposed to put
down what court you are from. But
there is still some psychological im-
pact there, and 1 find that eyeball to
eyeball, so to speak, you really learn
how people feel; how was the topic
presented; was it helpful. At this last
seminar we received a lot of good
comments on case management and
calendaring. We want to give more
emphasis to this area.

In connection with new judges, we
now try to have a video seminar as
soon as possible after appointment.
This is usually in groups of five or six
new bankruptcy judges. We gather
them together in one place for a video
presentation. There is a discussion
leader who leads the discussion and
answers questions after each video.

See BOSTETTER, page 8

theTHIHDbmnch

BOSTETTER, from page 7

Then, as soon as we have a sufficient
number of new judges, usually 50, we
bring them together and present a live
seminar.

How long is it before you try to
reach a new bankruptcy judge with
an educational experience?

Ideally, for a video seminar, which
includes case management and calen-
daring as well as some basic substan-
tive matters, within two or three
months, but certainly within six
months. The sooner the better. Then
the live seminar, ideally within twelve
months, which covers a very wide va-
riety of topics. Unfortunately, because
of the requirement of presenting the
live seminar to a minimum of 50 new
judges, they have been held every
other year. The FJC Board has just au-
thorized an additional live seminar for
bankruptcy judges, however, because
of the large number of judges autho-
rized by the new legislation but, as I
indicated, we usually hold them every
two years. In addition, I am trying to
encourage the judges to assist each
other in the area of exchange of new
ideas and procedures, which also can
be beneficial.

Is automation in the bankruptcy
courts helping?

Yes. When computerization first
came along there was a misconception

spawned that within a short period of
time it would cut down on the
number of personnel. That is not true.
In some instances additional person-
nel are required initially until the sys-
tem is in place and operational.
However, the ultimate advantage is
that a better product plus more work-
load can eventually be handled by the
same number of people. Its efficiency
is proven.

We are presently using the BANS
system, which is the bankruptcy
noticing system. Some courts have a
bankruptcy users' microprocessors
system, referred to as BUMS, which is
simply an IBM-compatible computer
with which they can not only notice
but can maintain a docket and uhlize
other programs for which software is
available. Also presently under de-
velopment is the BANCAP system,
which has created a kind of internal
struggle. The AO has turned its re-
sources, and I think quite rightly so,
to this third system called the BAN-
CAP system, which is a complete sys-
tem: It will notice, it will take care of
docketing, and will really give us an
overall product. The problem is,
though, as to how much money
should be spent to keep in place the
things that you already have— the
BANS system and the BUMS sys-
tem— or should you use all of your

money to establish the BANCAP sys-
tem. Recently, BANCAP has been
given the go-ahead. It is presently in
force in three courts. My understand-
ing is that they are New York Western,
Washington Western, and Texas West-
ern as a pilot project. Of course, ul-
timately it will be expanded. We ex-
pect to have it in place next year in the
Eastern District of Virginia. This, I
think, will be an excellent solution to
the many problems of noticing and
docketing.

Now, I might interject one other
thing here. 1 understand the Justice
Department has been authorized for a
relatively short period of time to de-
velop a system, which presumably
the bankruptcy clerks could use. The
success of this remains to be seen. ■

BREMSON, from page 3
as a regional director for the National
Center for State Courts; and as project
director for a comprehensive court
management project for the courts of
Cuyahoga County, Ohio. He has pub-
lished and lectured extensively on a
variety of topics on judicial admin-
istration. He is a graduate of Hobart
College and Georgetown University
Law Center, and in 1980 graduated
from the Institute for Court Manage-
ment. '

BULLETIN OF THE FEDERAL COURTS

THETHIED BRANCH

Vol. 19 No. 7 July 1987

The Federal Judicial Center

Dolley Madison House
1520 H Street, N.W.
Washington, DC 20005

Official Business

First
Class
Mail

Postage and

fees paid

United Statesj

Courts

U.S. G0VF;KNMF:NT printing office 1987-181-221-60003

BULLETIN OF THE FEDERAL COURTS

/'i

3^CG

ii,'w 8

. B8t-

BRANCH

VOLUME 19
NUMBER 8
AUGUST 1987

W Director Mecham.C Jfustice Lewis F. Powell, Jr., Retires-
^:Z^^MS''^^''l^-^^ Jo- in Tribute

after an illustrious career of private

AO Director L. Ralph Mecham has
nnounced that he is establishing the
!ourt Administration Division in the
idministrative Office of the U.S.
ourts effective Oct. 1, 1987. The new
ivision will provide basic program
>sistance, support, and coordination
) district court executives, clerks of
)urt (appellate, district, and bank-
iptcy), court reporters, court inter-
reters and librarians. It will take over
le functions currently performed by
le Clerks Division, the Office of
curt Reporting and Interpreting
?rvices, the Office of Library and
?gal Research Services, and the Of-
:e of the Special Assistant for Jury
id Speedy Trial Matters. The staff of
ese organizations will be trans-
rred to the new division.
Mr Mecham stated he expected that
' consolidating existing functions
id resources in one division, he will

able to provide a greater range of
rvices and assistance to clerks of
urt and other supporting person-
1. Recruitment of a chief for the new
i/ision began immediately on a na-
inwide basis. In addition, action
IS being taken to fill several other
ofessional positions in the new divi

Lewis F. Powell, Jr.

On June 26, Justice Lewis F. Powell,
Jr., announced his retirement from
the U.S. Supreme Court after more
than 15 years of service. Tributes to
Justice Powell from within the judici-
ary as we went to press include the
following:
Chief Justice William H. Rehnquist

Justice Powell came to the Court

practice and public service bespeak-
ing the best traditions of the legal pro-
fession. He has now capped that ca-
reer with 15 years of able and devoted
service as a justice of this court. We
shall miss his wise counsel in our de-
liberations, but we look forward to
being the continuing beneficiaries of
his friendship.

Retired Chief Justice Warren E.
Burger

Having served for 14 years as a col-
league of Justice Powell, and having
worked with him for many years be-
fore in programs for the improvement
of justice, I have high appreciation of
his service to the country. Through-
out his entire private career he was
making significant contributions to
the public at the local and state, as well
as national, level, both in education
for better citizenship and in the law. I
salute him.

Judge John C. Godbold, FJC Director
Justice Lewis Powell has ex-
emplified intellectual integrity, a deep
sense of fairness, and a full measure of
common sense. He has served well
See POWELL, page 4

r Chief Judge Winter Shares Views on Caseload,

m. Mr Mecham also said that he is Settlement Rolcs, Opinion-WritinQ Practices

See AO, page 5

Seminar Scheduled for
New District Judges

Judge John C. Godbold, FJC Di-
rector, has announced that the next
seminar for newly appointed dis-
trict judges will be held Nov. 16-21.
All sessions will be held at Dolley
Madison House in Washington,
DC, including a reception for the
udges and their families on Nov. 15
it six o'clock.

The program includes a dinner at
he Supreme Court on Nov. 17.

Chief Judge Harrison L. Winter was
appointed to the Fourth Circuit in 1966
and became chief judge in 1981. He had
previously served over four years as U.S.
district judge for the District of Maryland,
and had also served as assistant attorney
general and deputy attorney general for
Maryland, and as city solicitor for Bal-
timore. He has served as a member of the
Judicial Conference Committee on the Op-
eration of the Jury System.

What are your main concerns today
as to processing cases in the Fourth
Circuit?

My principal concern at the appel-
late level is in having the requisite

number of judges to hear and decide
the cases promptly. Presently the
court of appeals is terribly under-
staffed. For many months in the court
year I need five panels of judges, and
in the other months four panels.
When you consider that we have only
eleven active judges and two seniors
(who, fortunately, work a very large
percentage of the time) you can see
what my concern is. I am constantly in
the process of borrowing and recruit-
ing help. For the last year the situation
has been made more acute because
Judge Wilkins, the chairman of the
See WINTER, page 7

THE

Dbeanch

New York State Bar Survey of Lawyers, Judges
Finds Strong Support for Rule 11 Sanctions

A study released by a committee of
the New York State Bar Association
shows that lawyers and judges in the
federal courts in New York strongly
support sanctions under Fed. R. Civ.

P. 11.

More than 1,400 lawyers and 43 ju-
dicial officers responded to the survey
conducted by the state bar's Commit-
tee on Federal Courts. The survey was
sent to 8,000 attorneys throughout
New York State specializing in a wide
range of areas, with equal attention to
counsel for plaintiffs and defendants;
20 percent of the attorneys re-
sponded. All federal judicial officers
in New York were invited to partici-
pate, and more than 40 percent did so.
Seventy-five percent of the lawyers
and 93 percent of the federal judicial
officers responding feel that sanctions
are necessary. Eighty-seven percent

of the judicial officers think that rule
11 serves a useful purpose and should
be retained in its present form.

The current prachce of permitting a
court to compel the loser to pay the
winning attorney's fees in a variety of
circumstances is accepted by 90 per-
cent of the bench and bar, according to
the survey Half of the lawyers and
one-third of the judges surveyed sug-
gested requiring the loser to pay the
winner's attorney's fees even more
frequently than at present. However,
90 percent of the bar and two-thirds of
the bench oppose adoption of the
English system, which requires the
loser to pay all costs and attorneys'
fees.

The report provides data on the

amount of time spent on sanctions

(less than 5 percent in 80 percent of

See STUDY, page 10

200

M- ir -k ir ir -k

ir ir k it ir -k

FROM
THE

Commission

Guideline education. The Sentenc-
ing Commission and the FJC's Com-
mittee on Guideline Sentencing Edu-
cation, chaired by judge A. David
Mazzone (D. Mass.), have established
a working relationship to implement
the committee's plan on guideline ed-
ucation announced in Judge
Mazzone's May 12 memorandum to
chief judges, chief probation officers.

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 1 520 H Street, N.W.,
Washington, DC 20(X)5.

Co-«ditors

Alice L. O'Donnell, Director, Division of Inter-
Judicial Affairs and Information Services,
Federal Judicial C enter Peter (;. McCabe,
Assistant Director, Program Management,
Admmistrative Office of the U.S. Courts.

and federal defenders. Commission
Chairman William W. Wilkins, Jr.,
said that "we look forward to working
closely with Judge Mazzone and his
colleagues, and the Center staff, to
ensure that the training plan meets its
goals."

Testing the sentencing guidelines.
The commission is currently field test-
ing its guidelines in four sessions
around the country, with the help of
small groups of U.S. probation of-
ficers from 10 districts. These ses-
sions, as well as in-house clinical test-
ing programs with commission staff,
will help the commission correct defi-
ciencies and ambiguities in the
guidelines, commentary, and draft
worksheets.

Supplementary report. The com-
mission's Supplementary Report on the
Initial Sentencing Guidelines and Policy
Statements has been widely dis-
tributed within the judiciary and
elsewhere. It includes a detailed
study of the projected impact on
federal prison population of the
guidelines, the Anti-Drug Abuse Act

August 1787: With the Constitution's
structural outlines in place, the Con-
vention turned to such issues as
congressional control over the slave
trade.

Gouverneur Morris (Pa.) "never
would concur in upholding domes-
tic slavery. It was ... the curse of
heaven on the States where it pre-
vailed." To Mason (Va.), the slave
trade concerned "not the importtng
States alone but the whole Union."
Slavery "discourages art and man-
ufactures. The poor despise labor
when performed by slaves." Slaves
"bring the judgment of heaven on a
Country. As nations cannot be re-
warded or punished in the next
world they must in this."

To Rutledge (S.C), "religion and
humanity had nothing to do with
this question. Interest alone is the
governing principle. . . . The true
question is whether the Southern
States shall be parties to the Union."
Georgia, said Baldwin, would resist
"an attempt to abridge one of her
favorite prerogatives."

In the end, the Convenhon re-
tained the slave trade for 20 years (as
part of a late August compromise
involving commercial regulation),
along with the three-fifth's clause for
representation and protection for
fugitive slave laws.

Some slavery opponents thought,
as did Gerry (Mass.), that the prob-
lem would go away. 'As population
increases, poor laborers will be so
plenty as to render slaves useless.
Slavery in time will not be a speck in
our Country."

Others, perhaps with Gerry's er-
roneous prediction in mind, saw the
concessions as necessary for union.
They accepted the view that the
slave trade could not "be excluded
without encountering" what Madi-
son thought were "greater evils."

of 1986, the Career-Offender Pro\
sions of the Sentencing Reform A(
and the baseline growth in feder
convictions.

BULLETIN OF THE
FEDERAL COURTS

Iegis

lATION

The House of Representatives re-
cently passed legislation that, if en-
acted into law, would revise the pro-
cedure by which amendments to
federal rules are drafted and take
effect, and is intended to increase par-
ticipation in the rulemaking process
by all segments of the bench and bar.
The legislation, tide II of H.R. 2182, is
virtually identical to a bill passed by
the House in the 99th Congress (H.R.
3550, the Rules Enabling Act), except
that the bill has been amended to per-
mit the rules process to supersede
amendments to the rules made by act
3f Congress, thereby satisfying the
Dnly remaining objection to the bill by
:he Judicial Conference.

H.R. 2182 is entitled the Criminal
^w and Procedure Minor Substan-
ive and Technical Amendments Act
)f 1987. The act's title II is identical to
T.R. 1507, introduced in this Con-
p-ess by Rep. Robert W. Kastenmeier
D-Wis.) to provide a vehicle to recon-
ider the 99th Congress's H.R. 3550,
vhich the House passed unan-

1988 Seminar for Appellate
Judges Announced

A national seminar for all judges
of the U.S. courts of appeals will be
held in Washington, D.C., Oct.
24-26, 1988.

The seminar was proposed by the
FJCs Committee on Appellate Judi-
cial Education, chaired by Judge
Richard S. Arnold of the Eighth Cir-
cuit, and was approved by the Cen-
ter's Board earlier this year.

1988 marks the 200th year of the
Judiciary Act of 1789, the pivotal leg-
islative decision that the national
government would establish its own
court system. The seminar will
provide an opportunity to take stock
of federal appellate judging on the
eve of the federal judiciary's third
century, and to treat standard topics
of law and procedure and special
developments.

imously in 1985 after a review of the
Rules Enabling Act process by the
House Judiciary Committee's Sub-
committee on Courts, Civil Liberties,
and the Administration of Justice (see
The Third Branch, Feb. 1986, at 3).

H.R. 2182 requires, in part, that the
membership of the Judicial Con-
ference committees that work on
federal rules of practice, procedure,
and evidence be fully representative
of the bench and bar; that reasonable
notice be given so that interested per-
sons will have adequate opportunity
to comment upon proposed rules and
amendments; and that meetings of
the Judicial Conference committees
that work on rules be open unless a
committee votes to close a meeting. It
sets forth procedures for ensuring the
consistency of local rules with the na-
tional rules.

Title II would, in part, repeal the
supersession provisions in existing
law, which provide that all laws in
conflict with the federal rules shall be
of no further force or effect after such
rules take effect. Those supersession
provisions, which originated with the
enactment of the original Rules Ena-
bling Act of 1934, are regarded by the
bill's sponsors as no longer necessary
as a practical matter with respect to
statutory enactments outside the
rules.

The bill provides that local rules es-
tablished by federal district courts
would be reviewed for consistency
with the national rules by the judicial
council of the appropriate circuit, and
that local rules established by the
courts of appeals would be reviewed
for consistency with the national rules
by the Judicial Conference. The lan-
guage of H.R. 2182 broadens the lan-
guage that was contained in the bill in
the 99th Congress (H.R. 3550), to
provide for Judicial Conference re-
view of local rules of the U.S. Claims
Court and the U.S. Court of Interna-
tional Trade.

Title I of H.R. 2182 amends 18
U.S.C. § 4247(b), which deals with a
psychiatric or psychological examina-
tion ordered under 18 U.S.C. ch. 313,

ERSONNEL

Nominations

Ernest C. Torres, U.S. District Judge,

D.R.I., June 23
William D. Hutchinson, U.S. Circuit

Judge, 3d Cir., June 26
Anthony J. Scirica, U.S. Circuit Judge, 3d

Cir, June 26
Clarence A. Beam, U.S. Circuit Judge, 8th

Cir., July 1
T.S. Ellis III, U.S. District Judge, E.D Va

July 1
George C. Smith, U.S. District Judge, S.D.

Ohio, July 1
William L. Standish, U.S. District Judge,

W.D. Pa., July 1
Jerome Turner, U.S. District Judge, W.D.

Tenn., July 1
Charles R. Wolle, U.S. District Judge, S.D.

Iowa, July 1
R. Kenton Musgrave, Judge, U.S. Court of

International Trade, July 1
Robert H. Bork, Associate Justice, U.S. Su-
preme Court, July 7
James A. Parker, U.S. District Judge,
D.N.M., July 10

Confirmations

Robert F. Kelly, U.S. District Judge, E.D.

Pa., June 25
Robert H. Bell, U.S. District Judge, W.D.

Mich., July 1

Appointment

Haldane Robert Mayer, U.S. Circuit
Judge, Fed. Cir., July 9

Retirement

Lewis E Powell, Jr., Associate Justice, U.S.
Supreme Court, June 26

Offenders with Mental Disease or Defect.
Section 142 of the bill passed by the
House would authorize a licensed or
certified psychologist to conduct such
an examination, enlarging the
number of qualified persons from
whom a court may draw when order-
ing such a mental examination. Sec-
tion 142 is consistent with the ruling
in Massey v. Manitowoc Co., 101 F.R.D.
304 (E.D. Pa 1983), that a mental exam-
ination under Fed. R. Civ. P. 35(a)
could be conducted by a licensed psy-
chologist who is not a physician. Rep.
See LEGISLATION, page 5

THE

D BRANCH

POWELL, from page 1

the law, the Supreme Court, and our
country. Moreover, his courtesy to
and concern for his fellow members of
the federal judiciary have been mod-
els for all judges.

A. Leo Levin, FJC Director Emeritus
Justice Lewis Powell has been wide-
ly and justly acclaimed for his exem-
plary service as an associate justice of
the U.S. Supreme Court. The Nation
owes him much. In addition. Justice
Powell and his wife, Jo — wonderful
human beings, considerate and
thoughtful— have enriched any
number of Center functions, adding
significantly to our already immense
debt to them.

L. Ralph Mecham, Director, Admin-
istrative Office, and FJC Board
Member

A measure of the man is the high
regard of his friends who know him
best. I have been greatly impressed
with the genuine affection which Jus-
tice Powell enjoys among the judges
and staff of his home circuit, the
Fourth, and in the Eleventh Circuit, in
which he has served as circuit justice.
He has represented his Nation
admirably.

Tributes from Chief Judges of

the Circuits
Chief Judge Levin Campbell (1st
Cir.)

Justice Powell was a paradigmatic
judge who endeavored to determine
and apply the law wherever it led.
Few will dispute that he exemplified,
both in character and ability, many of
the finest judicial qualities.
Chief Judge Wilfred Feinberg (2d
Cir.)

He was a judge without precon-
ceived notions. His opinions made
clear in each case that he wrestled
with his conscience, disciplined by
the forces of reason and precedent.
The phrase "a scholar and a gen-
tleman" was obviously meant for him.
Chief Judge Harrison L. Winter (4th
Cir.)

The Fourth Circuit views Justice

Powell's resignation with great regret
but accepts it as a decision that he
alone should make. We have always
affectionately viewed him as our "sec-
ond" circuit justice. We thank him for
his superb and devoted service to the
Court and hope that he will sit with
the Fourth for many years.
Chief Judge Charles Clark (5th Cir.)
Nature has combined in Lewis
Powell its highest qualities of scholar
and gentleman. No matter who his
successor may be, the Court will miss
him, justice will miss him, America
will miss him.

Chief Judge Pierce Lively (6th Cir.)
Justice Powell had a distinguished
career as a practicing attorney. This
experience appeared to enable him to
resolve each case solely on the pro-
cedural and substantive issues pre-
sented. This quality engendered con-
fidence in the work of the Court.
Chief Judge William J. Bauer (7th
Cir.)

Justice Powell was a quiet, studious
man who made a great impact on the
law. He made a tremendous contribu-
tion to the law and his profession. He
will be sorely missed.
Chief Judge Donald P. Lay (8th Cir.)
American law has been greatly en-
hanced because of Justice Lewis
Powell, and all of us who have been
privileged to know him have been
greatly rewarded through his
friendship.

Chief Judge William J. Holloway, Jr.
(10th Cir.)

JusHce Powell's impact will be a last-
ing one. His contributions are memo-
rable due to his keen sense of justice,
his strength of intellect, and his dedi-
cation to vigorous protection of indi-
vidual rights.

Chief Judge Paul H. Roney (11th Cir.)
Justice Lewis F. Powell has been the
circuit justice for the Eleventh Circuit
since its inception in 1981. He has
been a constant inspiration to the
judges of our circuit, both profession-
ally and personally. Justice Powell ex-
emplifies all the finest qualities of a
great judge. He has been a warm, con-

cerned, and wise friend, and we cher-
ish the relationship he has had with
our circuit.
Chief Judge Patricia Wald (D.C. Cir.)

Justice Powell was the kind of judge
before whom any advocate could ar-
gue with absolute trust that her case
would be fairly heard — a fine jurist
and a lovely man.

Tributes from FJC Board
Members
Judge Alvin B. Rubin (5th Cir.)

Justice Powell has served this Na-
tion nobly. Havmg been an able law-
yer as well as a leader in the organized
bar, he was a splendid member of the
Supreme Court. His wisdom, integ-
rity, and dignity as a justice made him
a model for the district and circuit
judges of the United States. He has
helped to educate all of us.
Judge A. David Mazzone (D. Mass.)
Justice Powell will be missed. His
opinions were helpful because they
were context-specific. They were
thoughtful, careful and disciplined,
supported by analogy.
Judge William C. O'Kelley (N.D.
Ga.)

Justice Powell's retirement is re-
ceived with great remorse. We of the
trial bench viewed him as a great ju-
rist, lav^er, and above all, a wonder-
ful man. He was the circuit justice for
our circuit and he will be missed
there. We wish him much happiness
in retirement.

Judge Anthony M. Kennedy (9th
Cir.)

Justice Powell has made a vast and
scholarly gift to our jurisprudence,
but even more important is the exam-
ple he has set for every judge. His
belief that the law becomes rich from
the case system of adjudication, his
warmth and compassion, and his ab-
solute probity all consist with the
great traditions of the judiciary of the
United States.

Bankruptcy Judge Martin V. B.
Bostetter, Jr. (E.D. Va.)

Justice Powell's dedication as a
scholar and servant of the law leaves a
heritage of which we can all be proud.

BULLETIN OF THE /TtTK
FEDERAL COURTS ^19^

LEGISLATION, from page 3

Dan Glickman (D-Kan.) noted in an
malysis of H.R. 2182 that in deference
;o the Rules Enabling Acts, no change
s being made by the bill in rule 35(a),
>ut urged the Judicial Conference's
Advisory Committee on Civil Rules to
iddress whether rule 35(a) should be
imended to include licensed or cer-
ified psychologists.

Title I of H.R. 2182 also makes a
ninor change concerning the tempo-
ary release of a person who is hospi-
alized following an acquittal by rea-
on of insanity for a serious offense,
mother amendment permits the

O, from page 1

nterested in attracting persons to
hese positions who have had first-
land experience in court operations.

Robert J. Pellicoro, present chief of
he Clerks Division, will remain in his
'resent position until Oct. 1, when he
/ill be reassigned. Thereafter he will
ssist in establishing the division on a
ound basis and will also advise sen-
)r management in the AO on plan-
ing and policy matters.

Director Mecham also announced
le appointment of David A. Sellers
> public information officer for the
O. Mr Sellers will be a part of the
egislative and Public Affairs Office,
hich is headed by Robert E. Feidler.
!e will handle all media inquiries re-
Jrding administration of the federal
)urt system and the activities of the
idicial Conference of the United
:ates.

"Dave brings to the office a solid
ickground in legal journalism as
ell as a knowledge of the federal
>urt system, which should combine
make him a valuable addition to our
fice," Mr Mecham said.
Mr. Sellers spent the past five years
ith The Washington Times. Previously
? served as editor of Bar Report, the
ficial newspaper of the District of
Mumbia Bar, and as a public infor-
ation specialist for the Pennsylvania
apartment of Justice. ■

transmittal of wagering information
from a state where gambling is legal to
a foreign country in which gambling
is legal.
In other legislative developments

• Senator Howell Heflin (D-Ala.)
introduced S. 1482, the Judicial
Branch Improvements Act of 1987 (see
The Third Branch, June 1987, at 2).

• Senator Heflin also introduced
S. 951, entitled the Federal Courts
Study Act. The bill, like its companion
measure in the House, H.R. 1929,
would establish a Federal Courts
Study Commission, which would, in
part, study the jurisdiction of the
federal courts, evaluate their "pro-
cedures, personnel, business and ad-
ministration," and "develop a long-
range plan for the future of the
Federal Judiciary." The commission
would have fourteen members, four
to be appointed by the President, two
to be Senate members, two to be
House members, four to be appointed
by the Chief Justice, and two to be
appointed by the Conference of Chief
Justices. The Senate Committee on
the Judiciary's Subcommittee on
Courts and Administrative Pracbice
held a recent hearing on the measure,
at which Judge J. Clifford Wallace (9th
Cir.) teshfied for the bill. Then-direc-
tor of the FJC A. Leo Levin also testi-
fied in an individual capacity before
that subcommittee.

• The House Judiciary Commit-
tee's Subcommittee on Courts, Civil
Liberties, and the Administration of
Justice approved H.R. 2553 for full
committee action; it authorizes $325
million for the Legal Services Corp. in
fiscal year 1988, an increase of about
$19.5 million over the current
authorization.

• S. 1250, legislation to reauthorize
the State Justice Institute for an addi-
tional four years, through FY 1992,
has been introduced by Sen. Joseph
D. Biden and seven members of the
Senate Judiciary Committee, Sens.
Howell Heflin (D-Ala.), Edward
Kennedy (D-Mass.), Howard
Metzenbaum (D-Ohio), Dennis
DeConcini (D-Ariz.), Patrick Leahy

(D-Vt.), Paul Simon (D-Ill.), and Arlen
Specter (R-Pa.). The SJI is requesting
an appropriation of $12,892,000 for FY
1988.

• A bill that restricts the use of lie
detector tests in employment by most
private employers cleared the House
Education and Labor Committee by a
vote of 25 to 9. The bill, H.R. 1212, was
introduced by Rep. Pat Williams (D-
Mont.), and has 179 cosponsors. The
bill would prohibit the use of the tests
as a condition for getting or keeping a
job, but would not apply to federal,
state, or local government employees,
nor to persons doing counterin-
telligence work. H.R. 1212 sets civil
penalties for employers who violate
the act. Several amendments were of-
fered while the bill was before the
committee. Various amendments pro-
posed would have permitted the use
of polygraph testing by "security serv-
ices" businesses, such as the armored-
car industry, and by the phar-
maceutical industry, day-care centers,
and other businesses. The amend-
ments were rejected by the commit-
tee, but the full House is expected to
consider adding exemptions to the
bill's coverage. ■

ALENDAR

Aug. 3-4 Judicial Conference Commit-
tee on the Operation of the Jury
System

Aug. 3-5 Circuit Case Initiation and
Processing

Aug. 9-11 Judicial Conference Commit-
tee on the Budget

Aug. 17-21 Ninth Circuit Judicial
Conference

Aug. 19-21 Seminar for Magistrates of
the Fifth and Eleventh Circuits

Aug. 24-25 Staff Safety Program

Aug. 24-26 Workshop for Personnel
Officers

Aug. 24^28 Orientation for New Proba-
tion and Pretrial Services Officers

Aug. 27-28 Staff Safety Program

Aug. 31-Sept. 4 Orientation of New
Magistrates

Sept. 8-11 Seminar for Newly Appoint-
ed Appellate Judges

theTHBRDbranch

OTEWORTHY

Scope of judicial immunity doctrine.

The proper scope of the doctrine of judi-
cial immunity continues to figure in recent
court decisions involving personnel deci-
sions of both federal and state judicial of-
ficers, and the Supreme Court has granted
certiorari in one such case, Forrester v.
White, 792 F.2d 647 (7th Cir 1986), cert,
granted, 107 S. Ct. 1282 (1987). That case
poses the issue whether the doctrine of
judicial immunity bars a civil action
against a judge for demoting and dis-

Workload Statistics
Released by AO

The Administrative Office has re-
leased the Federal Judicial Workload
Statistics report on the business of
the federal courts for the 12-month
period that ended March 1987.

The report shows that both filings
and terminations increased in the 12
regional courts of appeals, with fil-
ings nationwide rising by 2 percent
to a record high of 34,761 appeals.
The number of civil cases filed in
U.S. district courts fell nearly 9 per-
cent compared to the previous 12
months. The reduchon in filings has
resulted primarily from decreases in
two types of achons — suits filed by
the U.S. government to recover on
defaulted student loans and over-
payments of veterans' benefits,
which fell by almost 46 percent dur-
ing the year, and Social Security dis-
ability filings, which decreased by
26 percent. Data from recent
months, however, have shown that
Social Security disability case filings
are again on the rise. Asbestos prod-
uct liability filings rose by nearly 50
percent to 7,786 cases. PeHtions filed
by state and federal prisoners rose
by nearly 11 percent.

The number of criminal cases filed
rose by neariy 5 percent to 42,949.
Requests for the report should be
directed to the Statistical Analysis
and Reports Division of the Admin-
istrative Office of the U.S. Courts,
Washington, DC 20544.

charging an employee, allegedly because
of her sex. The Seventh Circuit in Forrester
held that the official duties of an Illinois
probation officer are inextricably tied to
discretionary decisions considered to be
judicial acts, and therefore the state
judge's decision to discharge the proba-
tion officer was entitled to absolute judi-
cial immunity from a sex discrimination
claim.

In Guercio v. Brody, 814 F.2d 1115 (6th Cir
1987), the former personal secretary of a
bankruptcy judge brought an action for
wrongful termination, alleging that she
had been discharged in violation of her
First Amendment free speech rights. The
district court dismissed the case on the
basis of absolute judicial immunity. The
appeals court, stating that "[t]his case re-
quires us to draw a line between the ad-
ministrative and the judicial acts of federal
judges," held that the actions of the bank-
ruptcy and district court judges in firing
the secretary "clearly fall outside a pro-
tected judicial act."

In Ohse v. Hughes, 816 F.2d 1144 (7th Cir.
1987), Illinois state judges who investi-
gated a chief probation officer's request to
discharge a probation officer were held to
be involved in a "judicial act" and entitled
to judicial immunity. The judges con-
ducted a hearing for the employing court,
as required by Illinois statute in cases in-
volving the suspension of probation of-
ficers. The hearing "had all the elements of
a judicial proceeding," the appeals court
noted. The judges conducting it for the
court had no interaction with the plaintiff
other than that initiated by the plaintiff.
Moreover, an Illinois statute expressly
provided that probation officers shall be
removable in the discretion of the courts
appointing them. The opinion, by Senior
Judge William J. Campbell, relied on the
Seventh Circuit's eariier holding con-
struing the scope of judicial immunity in
Forrester.

Presentence investigation reports sub-
ject to disclosure under FOIA. Two pris-
oners requested copies of their pre-
sentence investigation reports under the
Freedom of Information Act. In separate
summary judgment motions, the Districts
of Arizona and Northern California or-
dered release of the reports. On appeal of
the consolidated cases, the Ninth Circuit
affirmed, holding that the reports were
"agency records" when they were in the

See NOTEWORTHY, page 11

Positions Available

District Executive, S.D. Fla. Salary to
$72,500, depending on experience.
Provides top-level direction and supervi-
sion over personnel and staff coordina-
tion, space and facilities, budgeting and
accounting, statistics, court security, and
office automation. Degree in business,
public administration, or law desirable.
Submit resume and cover letter by Sept.
14 to Chief Judge James Lawrence King,
U.S. District Court, 301 N. Miami Ave.,
Federal Courthouse Square, Miami, PL
33128.

Clerk, W.D. Ark. Salary to $53,830.
Requires 10 years' administrative experi-
ence in public service or business, at least
3 in substantial management position;
college or law degree may be substituted
for experience. To apply, send 2 copies of
resume by Aug. 15 to Clerk of Court,
P.O. Box 1523, Ft. Smith, AK 72902.

Administrative Office of the U.S.
Courts.

Chief, Court Administration Div.,

GS-301-15. Salary from $53,830 to high
60s, depending on experience and prior
federal service, if any. Promotion poten-
tial to GS-16. Serves as member of the
AO's senior staff. Must have experience
organizing and directing an organization
consisting of mulHple functions. Selective
factor: Knowledge of theories, principles,
and functions of court management.

Chief, Clerks Operations Branch,
Court Administration Div., GS-301-15.
Salary from $53,830 to high 60s depend-
ing on experience and prior federal serv-
ice, if any. Serves as a first line supervisor
for a small staff of professionals involved
in providing support to clerks' offices.
Selective factor: knowledge of theories,
principles, and functions of court
management.

Senior Clerks Administrator (BK),
GS-301-12/13/14.

Senior Clerks Program Specialist,
GS-30M2/13/14.

Clerks Administrator (General),
GS-301-1 1/12/13.

Please contact Joyce Stanley, (202)
633-6116, for copies of vacancy an-
nouncements and application pro-
cedures. All applications must be re-
ceived by Personnel, Administrative
Office of the U.S. Courts, by close of
business Aug. 21, 1987.

EQUAL OPPORTUNITY
EMPLOYERS

BULLETIN OF THE
FEDERAL COURTS

WINTER, from page 1

Sentencing Commission, has to de-
vote at least half of his time to the work
of the commission, and one other ac-
tive judge on the court has had a pro-
tracted illness and has been able to
participate very little.

In what category are most of your
criminal cases?

Most are drug cases. We have a large
lumber of these. I suppose any circuit
n states that have a coastline has some
)f these massive drug operations. We
:ertainly get a lot in South Carolina;
ve get them from Maryland, North
larolina, and Virginia also. These are

going to be able to perpetuate. Within
this period we had a planned resigna-
tion. Judge Sneeden, who had been a
member of the court for only a brief
period of time, announced some
months in advance that he would re-
sign for personal reasons. By that time
he had participated in a number of
appeals, and he had a number of
opinions in various cases assigned to
him. We made an extraordinary effort
to get him to complete the opinions in
cases which were assigned to him and
to have the other judges submit opin-
ions to him in the cases in which he
was a co-panelist, to avoid the necessi-

"l think that a judge should confine himself to a very
limited role in seeking settlements/'

•laces for importation. I am not pre-
pared to say that there are more than
T the Eleventh, or even in the Fifth,
ut we certainly have enough.

When you have a heavy drug case
ocket, do you get extra judicial help,
s they did in Florida?

No, not from outside the circuit.
)ur help has always been intracircuit,
'here we get judges to come from
nother district. When you couple
Jses of this type with the Speedy Tri-
I Act, the fact is that the civil docket
iffers from inattention, and ines-
jpably so in a lot of cases. It is unfor-
mate, but I do not know what the
iswer is except to have more judges.

In general I approve the concept of
le Speedy Trial Act. The difficulty is
lat it has given priority to a given
■oup of cases, and if you get many of
lese cases in an area where you do
3t have too much judge power, then
le other parts of the docket suffer.
Statistics from the AO show that
though the number of appeals filed
I the Fourth Circuit increased by
ore than 4 percent in 1986 over 1985,
e number of appeals pending de-
ined by 4.8 percent. To what do you
tribute this?

We have a remarkable record, but I
n afraid it is not one that we are

ty of having to rehear the cases in the
event of disagreement between the
other two judges. But this was an ex-
traordinary effort, and it is not some-
thing which judges can sustain over a
long period of time. We had been
making an extraordinary effort be-
fore, for several years, to keep abreast
of a mounting caseload with an inade-
quate number of active circuit judges
to hear the cases. But, here again, I
worry that this effort cannot be sus-
tained for too long a period.

Do you and the other judges in
your circuit press for settlement and
alternative dispute resolution?

Only to a limited extent, and I
would like to amplify the reasons for
this. I have not pressed vigorously for
this, because I think that a judge
should confine himself to a very lim-
ited role in seeking settlements. Per-
haps I am a bit gun-shy from my expe-
rience over the years. As a practicing
lawyer I had some bad experiences,
and resented greatly what I consid-
ered to be improper pressure from a
judge to settle a case. So when I first
came on the court as a district judge, I
felt very strongly that while a judge
should ask counsel if they had dis-
cussed settlement, and require that
they at least explore the possibility, he

ought not to implicate himself or in-
volve himself into the basis on which a
case should be settled or the price to
be put on a case and the like. So while
I encourage settlements in the ab-
stract, I did not encourage settlements
in the concrete.

How much should the judge be in-
volved in settlements?

Harrison L. Winter

I know that some judges have a rep-
utation among the bar as improperly
pressing for settlements and in some
instances, I regret to say, I think that
the reputation is well deserved. The
judge should do no more than making
sure that counsel have made a gen-
uine effort to reach agreement. He
should not set forth the basis on
which a case should be settled.

You have been talking about settle-
ments on the trial level. How about
the circuit level?

Turning to the appellate level, we
have not in the Fourth Circuit done
anything or adopted any procedures
which are directed to settlement and
alternative dispute resolution. I think
one of our problems is that, as a circuit
where the lawyers are widely dis-
persed and where transportation is
not the easiest in the world, we have
considered it impractical or op-
See WINTER, page 8

THETHiro BRANCH

WINTER, from page 7

pressive to bring counsel in a large
number of cases before a judge to ex-
plore the possibility of settlement. I
understand that some courts are
doing this by conference call, and I
admit that this is a possibility which
we have not really considered. I am
aware that some courts claim an im-
pressive record on settlement of cases
even at the appellate level. Inter-
estingly enough, we have a lot of cases
which settle at the appellate level, and
I think it is a result of the fact that we
monitor filings and pay close atten-
tion to scheduling. It is a matter of
judgment, of course, not something
that one can prove, but I am inclined
to think that the marked success with
settlement in some of the other cir-
cuits results in large part from the fact
that there is demonstrated the interest
of the judicial officer in what's going
on in the case. We do about the same
thing, but we do it through the clerk's
office by fbcing a tight briefing sched-
ule and requiring that parties adhere
to the schedule. We supervise very
closely the court reporters, so that our
transcripts are filed when they are
due. In other words, we try to adhere
strictly to the time schedule set forth
in the appellate rules, and we think
this in turn stimulates and encourages
settlement.

My basic feeling is that once a case
has advanced to the appellate level,
the likelihood of settlement is fairly
remote. I would think that the
chances of settling a case are much
greater before final judgment at the
trial level, so I do not really think that
there is as much demand or need for
settlement procedures at the appellate
level.

So you feel that a judge should not
impose his personality into settle-
ment at all; that it might be inter-
preted as a little pressure upon
counsel?

My experience has been that it is not
just a "little" pressure; it is a great deal
of pressure, and what 1 consider to be
improper pressure. This is why I am
so leery about the idea of having a

judge press for settlement. It is a very
narrow path that he can follow, and it
is very easy for him to over-step it and
unduly or improperly influence one
of the parties to accept a disposition.

Some judges have suggested the
creation of a special court to handle
Social Security cases. Do you favor
such a court? If created, would it sig-
nificantly cut down on the Fourth Cir-
cuit caseload?

My answer is yes and no as to
whether I favor such a court.

On the yes side, I would say that it
would have a very favorable impact on

"I think it most desirable
to have a national court,
short of the Supreme
Court of the United
States, which could decide
nonconstitutional conflicts
between the circuits."

our caseload, because we have a high
percentage of Social Security cases
and black lung cases. However, I
would temper my approval with a
statement that approval is con-
ditioned upon how the court is cre-
ated and how the judges are to be
selected. At the appellate level, at
least in our circuit, there is no doubt
about the fact that the Secretary of
Health and Human Services —
through the appeals council, of
course, or through the administrative
law judges in Social Security cases —
does what appears to be a perfectly
miserable job. Not all of these errors
are corrected by the district courts,
and we have the highest reversal rates
for these types of cases of any type of
case which comes to us. This has been
true for the roughly 20 years that I
have been a member of the court.
When you talk about a special court, if
it is to be an administrative court with-
in the Department of Health and
Human Services, I would be very,
very strongly opposed. If it were set

up as a court something like the U.S.
Tax Court, I would be in favor of the
proposal. I would not insist that the
judges be Article III judges, but they
must be completely independent of
the executive department and care-
fully chosen.

There is no doubt about the fact that
if such a court were created, it would
significantly cut down our caseload.
The Fourth Circuit gets a fair number
of what we call "black lung" cases; that
is, coalminers who are claiming bene-
fits because of pneumoconiosis.
These are in West Virginia, western
Virginia, and some in western Mary-
land. We also get out-and-out Social
Security cases, such as claims for dis-
ability benefits from former laborers
and textile workers. We have a not
inconsiderable Social Security prac-
tice and the reversal rate has been tre-
mendously high. So a Social Security
court would help us, because ob-
viously to reverse you must not only
hear the case, but also write a rea-
soned opinion as to why the case is
reversed, and this takes time.

Do you favor a national court of
appeals?

Here again, mine is a yes and no
answer In concept, I favor the idea,
because I think it is important, when
we have a national government and
we supposedly have one set of rules
which apply throughout the Nation,
that there be a tribunal which can de-
cide conflicts between the circuits. I
fully recognize that in this day and
age, the Supreme Court of the United
States can no longer do this, es-
pecially with regard to nonconstitu-
Honal conflicts. So from that stand-
point, I think it most desirable to have
a national court, short of the Supreme
Court of the United States, which
could decide nonconstitutional con-
flicts between the circuits. Constitu-
tional conflicts, it seems to me, are
more appropriately for the Supreme
Court, even in the first instance.

My reservation about the proposed
court is, how are the judges going to

See WINTER, page 9

BULLETIN OF THE
FEDERAL COURTS

WINTER, from page 8

e selected? I am not so concerned
t)out whether they are selected by
\e Chief Justice or whether they are
?lected by the President or whether
»ey are selected in some other way, as
am about the fact that they not be
?lected from the present circuit judg-
i — at least, the circuit judges of the
)urth Circuit — because we are so
lorthanded at the moment that I do
Dt think that we could continue to
inction if we were required to give

0 one more judge even on a part-
ne basis.

Have you asked for more judge-
lips?

We have asked for more. The Judi-
il Conference of the United States
is recommended that we receive
ur more and the legislation to au-
orize them has been introduced and
pending before Congress.
Dwever, I do not expect anything to
ppen for the next year or so.
What are your views of the
lidelines promulgated by the Sen-
icing Commission and now before
)ngress for review? Did you or
(ler judges in your circuit offer crit-
sm when the commission had pub-
hearings?

1 know, of course, that the original
port of the commission was widely
Hcized, at least informally, by the
dges, and particularly the district
dges of the circuit, primarily on the
ounds that it removed too much of
eir discretion in adjusting a sen-
ice to fit a particular situation. I, of
urse, agree that a sentencing judge
ould have a fair amount of discre-
n in this regard, and certainly it is
/ impression that the final report —
at is, the proposal which is now
nding before the Congress — re-
>res a great deal of that discretion. I
ow, nevertheless, that the proposal
ilso being criticized by some of the
'trict judges in the circuit, again on

? ground that too much of their dis-
■tion is removed, that the formula
determining a sentence in a par-
ilar case is too complicated, and the
2- To me, the overall objective of

Congress in setting up the commis-
sion, in trying to eliminate disparity
in sentencing, is a thoroughly com-
mendable one. I have often felt, par-
ticularly in the area of prisoner's
rights, in cases which have come up
under the jurisdiction to issue a
federal writ of habeas corpus, that
some bad law has been made by some

fences can avoid some of the disparity
that we are all upset about. I do not
welcome the extra duties, but I cer-
tainly welcome the authority to re-
view a sentence, particularly where
the sentence appears to be out of line
for one reason or another.

Fourth Circuit opinions are circu-
lated to all members of the court, in-

very tough, very difficult cases, be-
cause of exorbitant sentences im-
posed by state judges, and there is a
natural inclination on the part of
somebody who views the situation
compassionately to find some relief
for such an unjust sentence. I do think
if the Congress approves the
guidelines that there should be a
greater delay than November of this
year in putting them into effect, be-
cause I think all judges are going to
need a lot more education, demon-
stration, and practice on how to apply
them properly than we can hope to
achieve between now and November.

How do you feel about taking on
all the extra work of reviewing the
sentences that will now come to the
courts of appeals?

Well, I am not asking for additional
work, but I have always been in favor
of appellate review of sentences. I
think that appellate review of sen-

eluding those who did not hear argu-
ment, a procedure not followed in all
circuits. How long have you had this
procedure in effect?

It has been in effect ever since the
court grew from three members to
five in 1961. It had existed, however,
even when there was a court of only
three judges, back in the days when I
was a law clerk, when there was a
senior judge who participated in the
work of the court from time to time.
So in essence, when you ask me how
long has it been in effect, the answer is
it has always been in effect.

There are two justifications for the
practice at least that I can identify. The
first and perhaps the more important
one is that it is an effort to achieve
continuity in the opinions in the
court. And with the court's growth, it
is now possible to have two panels of
the court presented with the same
See WINTER, page 10

10 „__

theTHIIDbranch

WINTER, from page 9

questions to be sitting concurrently
without a single judge on either panel
being on the other. One of the reasons
for circulating the opinions is to avoid
the possibility that one panel will de-
cide a question one way and another
panel will decide the same question
another way. This, I think, I have
noHced in viewing opinions, say, of
the Ninth Circuit and of the Second
Circuit, where this practice has not
been followed.

some are not formally briefed and
many are decided on the papers, sim-
ply on an informal brief from the par-
ties. The opinions in those cases used
to be circulated to all of the judges. We
found, however, that we had to dis-
continue our circulation there. We
could not keep up with what each
other was doing and still do our own
work. Circulation is now limited to
cases which are put on the calendar
for argument.
I am concerned about whether, if

''We recognize the right of . . . judges [who did not sit on
the panel] to comment [on opinions], and this is a right
which is freely exercised in this circuit and is a very
valuable one."

The other reason for doing it is,
many times a non-sitting judge, one
who is not a co-panelist on the case,
will have some thoughts on the sub-
ject and will have a legitimate crit-
icism, or somebody who is not thor-
oughly familiar with the case will find
an obscurity in the opinion which he
wants to call to the attention of the
author. We recognize the right of non-
sitting judges to comment, and this is
a right which is freely exercised in this
circuit and is a very valuable one. For
the most part, the comments of non-
sitting judges are extremely helpful to
those who are charged with the re-
sponsibility of deciding the case.

In some of the circuits the opinions
are not circulated until they are filed.
It is much more difficult to resolve an
inconsistency, say, by rehearing a case
en banc, and a lot more wasteful to do
it that way, than to spot an inconsis-
tency at the deliberations level and
attempt to work out some accom-
modation before any opinion is
released.

To comment further on this matter
of circulating opinions to all judges,
let me say that we initially did it in all
cases, including prisoner cases — that
is, mostly habeas corpus cases or mo-
tions under 18 U.S.C. § 2255, where

and when we ever become a court of
15, we will be able to continue the
practice. I would not be a bit surprised
if, at that time, the volume might be-
come so great that it will be necessary
to sacrifice consistency for expediency
and efficiency in deciding cases.
When we grow it may be impossible
for each of us to keep up with every-
thing that everybody else is doing and
still do our own work. Perhaps at that
time we may have to limit circulation
of opinions to all members of the court
to those which will be published, as
distinguished from those which are to
be unpublished and which under our
rules are not supposed to be consid-
ered as a precedent.

Roughly what percentage of your
opinions are published in a year?

Only about 23 percent are being

published at the present time, but that
is within the range of the other cir-
cuits. The significance of publication
is that under our rules an unpublished
opinion is not to be cited as authority.
It can, however, be referred to by
counsel if a copy of it is attached as a
supplement to the brief. We are not
supposed to cite unpublished opin-
ions, but at times we will make refer-
ence to an unpublished opinion in a
footnote to indicate the rule that we
are now formally deciding on a prece-
dential basis is consistent with what
we did in the past.

Although the majority of the court
does not share my view, 1 think that
anything that the court does has some
precedential value, and parties ought
to be free to cite whatever the court
does. However, I would draw a line
between having great persuasive val-
ue and having only minor persuasive
value. Thus 1 would think that an un-
published opinion could be overruled
if a later panel in a true adversary
proceeding concludes that the pre-
vious case was wrongly decided,
without the need to convene an en
banc court. But as I have said, mine is
the minority view on the court and I
conform to what the majority has
decided.

To what do you attribute the large
criminal case filings in the Fourth Cir-
cuit district courts — the second high-
est nationally?

There is an explanation for this
which is not apparent on the face of it.
We are much higher in the area of
misdemeanors, not felonies, and the
reason is that first of all we have at
See WINTER, page 11

STUDY, from page 2

the cases); the percentage of cases in-
volving sanctions applications; and
the practices of courts regarding hear-
ings on sanctions (31.6 percent rou-
tinely hold an evidentiary hearing;
73.7 percent routinely hear oral
argument).

The report will be distributed by the
state bar to all federal judges in New

York State. The chair of the subcom-
mittee that produced the report is
Shira A. Scheindlin, a former magis-
trate in the Eastern District of New
York, currently in private practice.

Copies of the report, Sanctions and
Attorneys' Fees, are available by con-
tacting the association at One Elk
Street, Albany NY 12207, tel. (518)
463-3200. ■

BULLETIN OF THE
FEDERAL COURTS

INTER, from page 10

ast two areas in which misde-
eanors frequently occur. Half of the
dtimore-Washington Parkway is a
deral road, and as a consequence, if
)u are guilty of reckless driving or
)eeding or another serious traffic of-
nse, you are guilty of a federal of-
nse. The same is true of the Eastern
[Strict of Virginia where National
irport is located. We even have ap-
pals in a certain number of cases of
;hts between taxi drivers and the
)lice at NaHonal Airport. Also, we
ive all the military installations in
e Eastern District of Virginia, North
irolina, and South Carolina where
imes become federal statistics. An-
her significant factor is that Virginia,
liere a lot of these misdemeanors are
osecuted under the Assimilated
•imes Act, classifies as misde-
eanors many offenses that other
ites would treat as petty offenses.
I that when you look at our misde-
eanor statistics, it does not really
san that we have significantly more
isdemeanor cases than our counter-
rts elsewhere throughout the coun-
'. It simply means that we call more
ings misdemeanors, at least for sta-
hcal purposes, than they do. I think
u will find that aside from the large
mmal cases our criminal load is
illy not any different from the crimi-
1 load in the other circuits. ■

yrEWORTHY, from page 6

ssession of the U.S. Parole Commis-
n, and rejecting the contention of the
vemment that the reports are per se ex-
ipt from disclosure under FOIA exemp-
ns three and five (5 U.S.C. §§ 552(b)(3)
d 552(b)(5)). While finding that portions
the report may be withheld from dis-
sure, the Ninth Circuit held that the
role Commission has a duty under
'lA to release any nonexempt, segrega-
portions of a presentence investigation
>ort when the request is made by the
Jject of the report. ]ulian v. United States
o't of justice, 806 F. 2d 1411 (9th Cir. 1986),
'■ granted, 55 U.S.L.W. 3831 Qune 15,
17). .

HE 50URCE

The publications listed below may be of interest to
readers. Only those preceded by a checkmark arc
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 mailing label,
preferably franked (but do not send an envelope),
and addressed to Federal Judicial Center,
Information Services, 1520 H Street, N.W.,
Washington, DC 20005.

Adams, Charles. "Final Offer Arbitra-
tion: Time for Serious Consideration by
the Courts." 66 Nebraska L. Rev. 213 (1987).

Administrative Conference of the Uni-
ted States. Sourcebook: Federal Agency Use of
Alternative Means of Dispute Resolution. Of-
fice of the Chairman, 1987.

Aikman, Alexander B., Mary E. Eisner,
and Frederick G. Miller. Friends of the
Court: Lawyers as Supplemental Judicial Re-
sources. National Center for State Courts,
1987.

Aldisert, Ruggero J. "Philosophy, Juris-
prudence, and Jurisprudential Tempera-
ment of Federal Judges." 20 Indiana L. Rev.
453 (1987).

Bacigal, Ronald J., and Margaret I.
Bacigal. "A Case Study of the Federal Judi-
ciary's Role in Court-Ordered Busing: The
Professional and Personal Experiences of
U.S. District Judge Robert R. Merhige, Jr."
3 /. of Law & Politics 693 (1987).

i^Brennan, William J., Jr., "Space Settle-
ments and the Law." (Address given at
American Law Institute Annual Dinner,
May 21, 1987).

Burger, Warren E. "We The People." 37
Case Western Reserve L. Rev 385 (1986-87).

DAlemberte, Talbot. "Searching for the
Limits of Judicial Free Speech." 61 TulaneL.
Rev. 611 (1987).

Federal Judicial Workload Statistics — March
1987. Administrative Office of the U.S.
Courts, 1987.

Johnson, Charles A. "Law, Politics, and
Judicial Decision Making: Lower Federal
Court Uses of Supreme Court Decisions."
21 Law & Society Rev 325 (1987).

Kronman, Anthony T. "The Problem of
Judicial Discretion." 36 /. of Legal Education
481 (1986).

Lewis, Anthony. "Preserving the Sys-
tem: The Role of Judges." 14 Hastings Con-
stitutional L.Q. 1 (1986).

Lubet, Steven. "Judicial Impropriety:
Love, Friendship, Free Speech, and Other

Intemperate Conduct." 1986 Arizona State
L.J 379 (1986).

Marcus, Richard L. "The Perils of Priv-
ilege: Waiver and the Litigator." 84 Michi-
gan L. Rev. 1605 (1986).

Mathias, Robert A. The Road Not Taken:
Cost-Effective Alternatives to Prison for Non-
Violent Felony Offenders in New York State.
Correctional Association of New York,
1986.

Mathias, Charles McC, Jr "Advice and
Consent: The Role of the United States
Senate in the Judicial Selection Process." 54
University of Chicago L. Rev. 200 (1987).

McGowan, Carl. "Perspectives on Taft's
Tenure as Chief Justice and Their Special
Relevance Today." 55 University of Cincin-
nati L. Rev 1143 (1987).

Meese, Edwin, III. "Promoting Truth in
the Courtroom." 40 Vanderbilt L. Rev. 271
(1987).

Mikva, Abner J. "Reading and Writing
Statutes." 48 University of Pittsburgh L. Rev.
627 (1987).

See SOURCE, page 12

THE BOARD OF THE
FEDERAL JUDICIAL CENTER

Chairman

The Chief Justice
of the United States

Judge Anthony M. Kennedy

United States Court of Appeals

for the Ninth Circuit

Judge Alvin B. Rubin

United States Court of Appeals

for the Fifth Circuit

Judge Jose A. Cabranes

United States District Court

District of Connecticut

Judge William C. O'Kelley

United States District Court

Northern District of Georgia

Judge A. David Mazzone

United States District Court

District of Massachusetts

Chief 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

Judge John C. Godbold, Director

Charles W. Nihan, Deputy Director

THElHiroBRANCH

SOURCE, from page 11

Miner, Roger J. "Preemptive Strikes on
State Autonomy— The Role of Congress."
(Address given Feb. 18, 1987.) The Heritage
Lectures, No. 99. The Heritage Foundation,
1987.

Noonan, John T, Jr., "Education, Intel-
hgence, and Character in Judges (The
John Dewey Memorial Lecture)." 71 Min-
nesota L. Rev. 1119 (1987).

Peckham, Robert F. "Asia and U.S. Face
Common Problems in Settling Legal Dis-
putes." Asia Foundation Q., Winter-Spring
1987, p. 1.

Peterson, Mark A. Civil Juries in the
1980s: Trends in Jury Trials and Verdicts in
California and Cook County, Illinois. Rand
Corporation, 1987.

Potuto, Josephine R. "The Modern Pris-
on: Let's Make It a Factory For Change." 18
University of Toledo L. Rev. 51 (1986).

Powe, Lucas A., Jr American Broadcast-
ing and the First Amendment. University of
California Press, 1986.

Powell, Lewis R, Jr. "Justice Harlan." 31
New York Law School L. Rev. 417 (1986).

Rampacek, Anne S. "Impact of Rule 11
on Civil Rights Litigation." 3 The Labor Law-
yer 93 (1987).

Ray, C. L., and M. R. Yogi McKelvey.
"The Mandamus Explosion." 28 South
Texas L. Rev. 413 (1987).

Reed, Scott O. "Judicial Education in Il-

linois."-CB/4 Record, April 1987, at 25.

Rehnquist, William H., Kenneth W.
Starr, Alex Kozinski, John Edward Sexton,
Mark W. Cannon, and George E. MacKin-
non. "A Tribute to Chief Justice Warren E.
Burger." 100 Harvard L. Rev. 969 (1987).

Remington, Frank J. "The Changing
Role of the Trial Judge in Criminal Cases —
Ensuring That the Sixth Amendment
Right to Assistance of Counsel is Effec-
tive." 20 U.C. Davis L. Rev. 339 (1987).

"Report of the New York Task Force on
Women in the Courts." 15 Fordham Urban
L.j. 11 (1986-87).

Report on Sanctions and Attorneys' Fees.
Committee on Federal Courts of the New
York State Bar Association, Subcommittee
on Sanctions and Attorneys' Fees, 1987.

Ross, H. Laurence, and James P. Foley.
"Judicial Disobedience of the Mandate to
Imprison Drunk Drivers." 21 Law & Society
Rev. 315 (1987).

Rothenberg, Elliot C. "The 'Necessity'
to Restrict Appeals to Judicial Prejudice."
21 New England L. Rev. 581 (1985-86).

Rubin, Alvin B. "Constitutional Protec-
tion for the Barber in Ville Platte." 61 Tulane
L. Rev. 715 (1987).

Rubin, Alvin B. "Doctrine in Decision-
Making: Rationale or Rationalization."
1987 Utah L. Rev. 357.

Sadurski, Wojciech. "Conventional Mo-
rality and Judicial Standards." 73 Virginia
L. Rev. 339 (1987).

Sarokin, H. Lee. "Justice Rushed Is Jus-
tice Ruined." 38 Rutgers L. Rev. 431 (1986).

Seng, Michael P. "Federalism, the
Courts and Individual Liberties " 75 Illinois
Bar J. 310 (1987).

Shapiro, David L. "In Defense of Judi-
cial Candor." 100 Harvard L. Rev. 731 (1987).

Stern, Gerald. "Is Judicial Discipline in
New York State a Threat to Judicial Inde-
pendence?" 7 Pace L. Rev. 291 (1987).

Subrin, Stephen N. "How Equity Con-
quered Common Law: The Federal Rules
of Civil Procedure in Historical Perspec-
tive." 135 University of Pennsylvania L. Rev.
909 (1987).

Tiedemann, John. "Bad Decisions, Bad
Judging: A Glimpse at the Dark Side of the
Judiciary." 11 Nova L. Rev. 139 (1986).

Tokarz, Karen L. "Women Judges and
Merit Selection Under the Missouri Plan."
64 Washington University L.Q. 903 (1986).

Tonry, Michael H. Sentencing Reform Im-
pacts. National Institute of Justice, 1987.

Umbreit, MarkS. "Victim/Offender Me-
diation: A National Survey." Federal Proba-
tion, vol. L, p. 53 (Dec. 1986).

Webster, William H. "Second Annual
Ainsworth Memorial Lecture." 33 Loyola L.
Rev. 5 (1987).

Webster, William H. "Sophisticated Sur-
veillance— Intolerable Intrusion or Pru-
dent Protection?" 1986 Detroit College of
Law Rev 1179.

BULLETIN OF THE FEDERAL COURTS

THETHIHD BRANCH

Vol. 19 No. 8 August 1987

The Federal Judicial Center

Dolley Madison House
1520 H Street, N.W.
Washington, DC 20005

Official Business

First
Class
Mail

Postage and

fees paid

United States

Courts

U.S. GOVERNMENT PRINTING OFFICE 1987 181 221-60004

Jn.l0.3/:z

qfq

BULLETIN OF THE FEDERAL COURTS

theTI

ram. oat.

BRANCH

House Subcommittee on Criminal Justice
Hears Testimony on Sentencing Guidelines

New Bureau of Prisons
Director Encourages
fudges' Interest

/. Michael Quinlan became director of
he Bureau of Prisons in July. A Fordham
Mio School graduate, he holds a master of
aw degree from George Washingto^^i-
'ersity and joined the Bureau of^^is as
n attorney in 1971 . He has b^nexec^tive
ssistant to the former director, N^mn
Mrlson; superintep4^t ofafedeM pris^

te Federal Cor- _ ^^ ^^>^v iU ^^^^ ^^^^^^ ^^^ ^ ^^^^^^ ^J

•^ress enacts a delay. The Executive

^ Committee of the Judicial Conference

fijas proposed a delay until November

,^-> V)SS to allow more time for testing

\> and education. The Administrative

Office has transmitted to Congress

VOLUME 19
NUMBER 9
SEPTEMBER 1987

Possible delay of the Nov. 1 imple
mentation date for the U.S. Sentenc-
ing Commission's sentencing
guidelines was a major issue at recent
hearings before the House Judiciary
Committee's Subcommittee on Crimi-
nal Justice, chaired by Rep. John
Conyers, Jr. (D-Mich.).

The commission transmitted its

xtional Insti-
ution in

Hisville,N.Y.;
nd deputy as-
stant director
id deputy di-
'ctor of the
ureau.

Did the po-
tion of direc-
r bring any
irprises with '■ ^"^''"^l Qmnlan
when you took office?
I have been with the agency for 16
ars. I had the opportunity through
arm's guidance, of not only working
r him for three and a half years as
ecutive assistant, but also working
r him the last 15 months as deputy
rector. I have had a good exposure
the major issues facing the Bureau
Prisons and feel very fortunate that
lave had that foundation and am
leriting an agency that is in out-
nding shape.

during these last 15 months. Norm
'dually exposed me to managing
' Bureau of Prisons and gave me
're and more authority. For exam-
, I recently sat in on some National
titute of Corrections committee
ehngs. Even though I knew Norm
'nded a lot of meetings, I wasn't
;nizant of the extent of involvement
the director of the Bureau of
ions.

See QUINLAN, page 6

the text of a proposed amendment
that would delay the effective date of
the guidelines by one year and solve
any "ex post facto" problem by spec-

ifying that the guidelines apply only
to cases in which the criminal conduct
was committed after their effective
date.

Members of the Sentencing Com-
mission, including its three judicial
members— Chairman William W.
Wilkins, Jr. (4th Cir.), Stephen Breyer
(1st Cir.), and George E. MacKinnon
(D.C. Cir.)— testified July 23 in sup-
port of the commission's guidelines,
but repeated the commission's pro-
posal to delay their implementation
until Aug. 1, 1988. Judge Jon O.
Newman (2d Cir.) testified July 22 in
favor of the guidelines, suggesting
that a six-month, or at most a nine-
month, delay in their implementation
was enough, stating that a longer de-
lay period was "not advisable."

See GUIDELINES, page 2

Judiciary Celebrates Bicentennial of United States Constitution

The federal judiciary is engaged in a
"regular kaleidoscope" of projects and
activities to mark the bicentennial of
the Constitution, in the words of Chief
Judge Howard T. Markey (Fed. Cir.),
chairman of the Judicial Conference
Committee on the Bicentennial.

The many forms that the judiciary's
observance of the Bicentennial has
taken include various circuit judicial
conferences focusing on the Constitu-
tion, including the Third Circuit
Fiftieth Judicial Conference in conjunc-
tion with the major celebration in Phila-
delphia Sept. 16-18; special naturaliza-
tion ceremonies; poster-bearing kiosks
in courthouse lobbies; cassettes of the
five-film series "Equal Justice Under
Law" shown in courthouses to waiting
jurors and attorneys; a judge-authored
opera; judges speaking and conducting
mock trials in schools and courtrooms;
debates on constitutional interpreta-
tion; speeches at service clubs; court-
sponsored essay contests; recorded
constitutional messages played in court
lobbies and on TV; and distribution of

copies of the Constitution.

Chief Judge Markey said that these
and other activities reflect the wide va-
riety of efforts under way within the
judiciary as it participates in what Chief
Justice Warren E. Burger (ret.), chair-
man of the national Commission on the
Bicentennial of the U.S. Constitution,
has described as a national "civics
lesson" from which all can learn.

The Judicial Conference Committee
and local court committees have work-
ed with the national commission, for
example, in connection with the travel-
ing exhibition on the Magna Carta.

On Celebration of Citizenship Day,
Sept. 16, President Reagan, Chief Justice
Burger (ret.), Supreme Court Justices,
Senators, Representatives, and District of
Columbia area school children will gather
on the steps of the Capitol. Through na-
tionwide hook-ups, courts, state legis-
latures, and private businesses will be
joining in national ceremonies and con-
ducting their own local programs honor-
ing the Constitution on Celebration of
Citizenship Day

THE

BRANCH

GUIDELINES, from page 1

Judge Tjoflat, chairman of the Com-
mittee on Administration of the Pro-
Other witnesses, such as Judges bation System of the Judicial Con-
Gerald W. Heaney {8th Cir.) and ference and a member of the hJC

Comm,ss.on n.cubers Ilene H. Nagel. judge WUU.m W. WUk.ns, jr. (chanman). and Helen G.
Corroihers (left to right) listen to the testimony of fellow commissioner judge George t.
MacKinnon.

GUbert S. Merritt (6th Cir.), expressed
serious reservations about the
guidelines.

Judge Heaney questioned whether
the guidelines would eliminate sen-
tencing disparity but suggested they
would increase the federal prison
population, appellate workload, and
plea bargaining. Judge Merritt fa-
vored a delay in the implementation
of the guidelines, during which a pilot
project of field-testing them would be
conducted.

Judges Gerald B. Tjoflat (11 th Cir.)
and A. David Mazzone (D. Mass),
members of the Judicial Conference
Ad Hoc Committee on Sentencing
Guidelines, appeared before the sub-
committee to present the Judicial
Conference Executive Committee's
request for a 12-month delay.

Committee on Sentencing Guidelines
Education, stressed to the subcom-
mittee that "the probation officer will

ing hearing, and that a way will have
to be found to ensure that the courts of
appeals get transcripts in non-
Criminal Justice Act cases. In addi-
tion, he pointed out that the courts of
appeals will need an expedited pro-
cedure for processing appeals, lest the
sentence expire prior to appellate re-
view. Judge Mazzone also expressed
concern about the potential strain on
judicial resources as a result of the
guidelines.

Judge Edward R. Becker (3d Cir.),
also a member of the Committee on
Sentencing Guidelines Education,
shared many of Judge Mazzone's
views, calling for a nine-month imple-
mentahon delay.

Samuel J. Buffone, a representative
of the ABA, urged a 24-month delay in
implementation of the guidelines to
allow for their refinement and for ed-
ucation of the bench and bar.

lud'ies Gilbert S. Merntt, Gerald W. Heaney. and jon O. Neioman pin former ,udge Mannn E.
Frankel and Rep. John Conyers. jr. (left to right) m a discussion prior to the hearing.

TmTHJRD BRANCH

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,

Co-editors

Alice L. O'Donnell, Director, Division of Inter-
Judicial Affairs and Information Services,
Federal Judicial Center. I'eter (. McCabe,
Assistant Director, Program Management,
Administrative Office of the U.S. Courts

play a significantly different and more
time-consuming role" under the new
law, thus requiring "extensive"
training.

Judge Mazzone, chairman of the
FJC Committee on Sentencing
Guidelines Education, described the
extent of the education and training
that will be required for probation of-
ficers, judges, magistrates, staff attor-
neys, and federal public defenders.
He pointed out that each district will
have to amend its local rules to
provide a procedure for the sentenc-

The subcommittee also heard testi-
mony from former District Judge
Marvin E. Frankel of New York, who
supported the guidelines process,
and from other witnesses. Judge
Thomas A. Wiseman, Jr. (M.D. Tenn.)
has also testified before the subcom-
mittee, and Judge G. Thomas Eisele
(E.D. Ark.) is scheduled to testify at a
later date.

Senator Alan J. Dixon (D-111.) has
separately introduced a bill to extend
by 18 months the effective date of the
sentencing guidelines. ■

BULLETIN OF THE
FEDERAL COURTS

Legis

LATION

Prior to its August recess. Congress
onsidered or voted on a number of
leasures of interest to the judiciary.

• The House passed H.R. 2763, the
Y 1988 appropriations bill that in-
ludes the judiciary. The appropria-
ons for the courts of appeals, district
3urts, and other judicial services
'ere cut from $1,374,378,000 to
1,288,660,000, a 6 percent reduction.
^fore passing H.R. 2763, the House
so voted in favor of an additional 2.4
?rcent cut in the $14 billion measure,
le cuts in their entirety are being
)pealed to the Senate Appropria-
)ns Committee.

• Although the House Appropria-
)ns Committee approved a provi-
)n to abolish diversity of citizenship
a basis of federal court jurisdiction,
e full House struck the provision
)m H.R. 2763 (see above) on a pro-
dural point against including
licy-changing legislation in an ap-
opriations measure. Rep. Robert W.
stenmeier (D-Wis.), chairman of
i House Judiciary Committee's Sub-

committee on Courts, Civil Liberties,
and the Administration of Justice,
stated that his subcommittee will try
to report legislation on diversity juris-
dicHon, similar to the legislation that
was stricken by the House.

• New language amending Fed. R.
Crim R 30 and Fed. R. Civ. R 51 be-
came effective Aug. 1. The rules
changes provide that a "court may in-
struct the jury before or after the argu-
ments are completed or at both times."
The language modifying the rules was
transmitted to Congress Mar. 9 by the
Chief Justice on behalf of the Supreme
Court, and under the rules amend-
ment process was scheduled to take
effect Aug. 1 unless Congress voted
otherwise. The House Judiciary Com-
mittee's Subcommittee on Criminal
Justice held an oversight hearing in
July on the proposed changes, at
which Stephen A. Saltzburg, the re-
porter of the Judicial Conference's Ad-
visory Committee on Federal Rules of
Criminal Procedure, testified that the
proposed amendments would
provide judges with enhanced flex-
ibility in instructing jurors. An ABA

See LEGISLATION, page 5

enter Invites Courts to Report
inovations in Judicial Management

[n meeting its statutory mandate
it it further "the development and
option of improved judicial admin-
ration in the courts of the United
ites," 28 U.S.C. § 620(a), the Center
times brings together one court
th a problem and another court that
5 found a solution to that problem,
renter efforts in this regard take a
rr.ber of forms. They include Re-
rch Division reports on court inno-
ions, with specific details on the
oration and administration of such
•grams. Partial Payment of Filing Fees
Prisoner In Forma Pauperis Cases in
eral Courts: A Preliminary Report
34) covered the Northern District
Ohio's requirement of partial pay-
nt of filing fees to discourge frivo-
s filings by prisoners; the report.

including locally produced forms,
serves as a kind of how-to-do-it man-
ual for other courts. The joint Trial Cal-
endars in the Western District of Missouri
(1985) is another example of similarly
documented experience, reporting on
a joint trial calendar used there to
avoid or reduce calendar congestion.
Staff of the Research Division who
learn how individual courts are deal-
ing with particular problems can
serve as valuable sources of informa-
tion to other courts within the system.
Moreover, informahon on locally gen-
erated responses to problems is also
conveyed through the Center's Infor-
mation Services Office in response to
specific information requests.

For the Center to disseminate infor-
mation about innovative approaches

200

• •••••

September 1787: On Sept. 8, the con-
vention elected a "Committee of
Style" to write a final draft of the
Constitution from the draft it had
been debating since early August.
The five-member committee, whose
chief pen probably belonged to
Gouverneur Morris (Pa.), worked
numerous stylistic changes and two
of a more substantive nature.

First, the preamble reported in
August would have proclaimed that
"We the people of the States of New
Hampshire [etc., listing all thirteen]
do ordain, declare and establish the
following Constitution for the gov-
ernment of ourselves and our pos-
terity." As the convention had since
decided that any nine states could
ratify the Constitution, it was neces-
sary to omit mention of the individ-
ual states in favor of "We the people
of the United States . . . ," to which
Morris added an itemization of con-
stitutional goals.

Second, the committee's draft in
Art. I, § 10, prohibited the states
from passing "laws altering or im-
pairing the obligation of contracts,"
a provision the convention ap-
proved with slight change — even
though it had rejected such a provi-
sion in late August.

On Sept. 17, the convention ap-
proved the Constitution, which
Washington sent to the Congress,
requesting that it be submitted for
ratification and noting that it was
"the result of a spirit of amity, and of
that mutual deference and con-
cession which the peculiarity of our
political situation rendered indis-
pensable."

BICENTENNIAL OF

THE US CONSTITUTION

developed by courts in areas of court
administration and management, it
must first learn of innovations that
have been tried and proved suc-
cessful. The Center, therefore, invites
all members of the judicial family to
report innovations that have been
effective in resolving problems that
might affect other courts. ■

THE

D BRANCH

Boadwine Named Circuit Executive for 8th Circuit

lOTEWQRTHY

Ms. Boadunne is sworn in by Chief Judge Lay

Chief Judge Donald P. Lay (8th Cir.)
has announced that the Judicial Coun-
cil of the circuit has appointed June L.
Boadwine of St. Paul, Minn., as circuit
executive.

Ms. Boadwine is a native of Water-
town, S.D. She served as an assistant
and office manager for a Watertown

law firm and then as executive secre-
tary to Judge Myron H. Bright {8th
Cir.). In 1983, she became admin-
istrative assistant to Chief Judge Lay,
and in October 1985 was appointed act-
ing circuit executive. Ms. Boadwine is a
graduate of the Institute for Court
Management.

Personnel

Nominations

David C. Treen, U.S. Circuit Judge, 5th

Cir., July 22
Michael B. Mukasey, U.S. District Judge,

S.D.N.Y., July 27
William L. Dwyer, U.S. District Judge,

W.D. Wash., July 28
Sam R. Cummings, U.S. District Judge,

N.D. Tex., July 31
Richard L. Voorhees, U.S. District Judge,

W.D.N.C, July 31
Wade Brorby, U.S. Circuit Judge, 10th

Cir., Aug. 7
Robert E. Cowen, U.S. Circuit Judge, 3d

Cir., Aug. 7
Stephen S. Trott, U.S. Circuit Judge, 9th

Cir., Aug. 7
Richard J. Arcara, U.S. District Judge,

W.D.N. Y,, Aug. 7
Nicholas H. Politan, U.S. District Judge,

D.N. J., Aug. 7

Confirmations

Urrv j McKinney, U.S. District Judge,

S.D. Ind., July 17
Philip M. Pro, U.S. District Judge, D.

Nev., July 22
William D. Hutchinson, U.S. Circuit

judge, 3d Cir, Aug. 5

Anthony J. Scirica, U.S. Circuit Judge, 3d

Cir., Aug. 5
T. S. Ellis, III, U.S. District Judge, E.D.

Va., Aug. 5
Charles R. WoUe, U.S. District Judge, S.D.

Iowa, Aug. 5
John D. Tinder, U.S. District Judge, S.D.

Ind., Aug. 7

Appointments

Michael S. Kanne, U.S. Circuit Judge, 7th

Cir., May 21
Reena Raggi, U.S. District Judge,

E.D.N.Y., May 26
Ronald S. W. Lew, U.S. District Judge,

CD. Cal., May 29
Joseph P. Stadtmueller, U.S. District

Judge, E.D. Wis., June 1
Richard J. Daronco, U.S. District Judge,

S.D.N.Y., June 8

Resignation

Susan Getzendanner, U.S. District Judge,
N.D. 111., Sept. 30

Senior Status

Donald R. Ross, U.S. Circuit Judge, 8th
Cir., June 13

Deaths

H. Kenneth Wangelin, U.S. District Judge,

i:.D. Mo., June 10
William Ray Overton, U.S. District Judge,

E.D. Ark., July 14

Supreme Court strikes down district
court bar residency requirement. The Su-
preme Court has invalidated local rules of
the Eastern District of Louisiana that re-
quired residence or the maintenance of an
office in Louisiana as a condition of admis-
sion to and continued membership in the
bar of the district court. Frazier v. Heebe, 55
U.S.L.W. 4877 (June 19, 1987). Frazier,
who lived in and maintained his law office
in Mississippi, petitioned for a writ of pro-
hibition from the Fifth Circuit, alleging
that the restrictions contained in the local
rules were unconstitutional. The Fifth Cir-
cuit remanded to the Eastern District, all
the judges of which recused themselves.
The matter was assigned to Judge Edwin
Hunter (W.D. La.), who denied Frazier's
petition for extraordinary relief and dis-
missed the suit after a one-day bench trial.
The Fifth Circuit affirmed, finding that the
discrimination at issue did not warrant
heightened scrutiny, and holding that the
exclusion of such attorneys was rationally
related to the district court's goal of pro-
moting lawyer competence and avail-
ability for hearings. The Supreme Court
reversed. Pursuant to its supervisory au-
thority, it invalidated the local rules, find-
ing that both the residency and in-state
office requirements were "unnecessary"
and arbitrarily discriminated against out-
of-state practitioners.

Third Circuit task force on rule 11 sanc-
tions. Chief Judge John J. Gibbons (3d Cir.)
has established a task force to study the
implicahon of sanctions under Fed. R. Civ,
P 11. The group is chaired by Chief Judge
John P FuUam (E.D. Pa.). University ol
Pennsylvania Law Professor Stephen B
Burbank is the reporter. Other members
include Judge Alan N. Bloch (W.D. Pa.)
FJC Director Emeritus A. Leo Levin of the
University of Pennsylvania Law School
Third Circuit Executive William K. Slate II
New York University Law Professor Lindc
Joy Silberman; Melville D. Miller, Jr., di
rector of New Jersey Legal Services; ant
attorneys from Delaware, New York
Pennsylvania, New Jersey, and Illinois
Persons interested in bringing rule H is
sues to the attention of the task force an
invited to contact Mr. Slate. The task foro
will also consider the effect of sanction
under Fed. R. Civ P 26(g).

See NOTEWORTHY, page

BULLETIN OF THE
FEDERAL COURTS

EGISLATION, from page 3

'presentative testified in opposition
> the proposed changes. Following
te hearing. Congress took no action
I prevent the rules changes from tak-
g effect as scheduled.
The House Judiciary Committee's
abcommittee on Criminal Justice
so held an oversight hearing on
nendments to the RICO chapter of
U.S.C.

• A hearing was held on two Sen-
? bills introduced by Sen. Howell
?flin (D-Ala.), chairman of the Sen-
i Judiciary Committee's Subcom-
ttee on Courts and Administrative

)TEWORTHY, from page 4
ludicial immunity. The doctrine of judi-
I immunity applies to a board of bar
iminers and a character and fitness
nmittee, the Sixth Circuit affirms. An
successful applicant to admission to the
■ in Kentucky brought an action under
U.S.C. § 1983 against the Kentucky
mmittee on Character and Fitness, its
mbers, two of its employees, a member
the Board of Bar Examiners, and the
?fjusticeofKentucky's Supreme Court.
? plaintiff alleged, inter alia, that his
'Stantive and procedural due process
Us had been violated. He alleged that
en he was first a candidate for admis-
1 to the Kentucky bar, an associate
Tiber of the character and fitness com-
tee who had interviewed him ad-
3sed a letter to the State Board of Bar
miners staHng that the applicant was
possessed of the requisite character
fitness. The applicant claimed to have
knowledge of this recommendation,
proceeded to take the bar exam four
?s.

he district court concluded that the
:tions of the Board of Bar Examiners

the character and fitness committee
inot be divorced from the actions of the
reme Court of Kentucky" that their
nties were "clothed with judicial im-
lity," and dismissed the complaint.

Sixth Circuit affirmed, both as to the
f justice and as to the non-judge de-
lants. "The act of considering an ap-
Jtion to the bar is a judicial act. And it is
ess a judicial act simply because it is
ormed by nonjudicial officers ... on
Jif of the judiciary" the Sixth Circuit
''■ Sparks v. Character & Fitness Comm.,
F2d 541 (6th Cir. 1987). ■

Practice, which would provide coun-
sel the opportunity to question pro-
spective jurors in both civil and crimi-
nal cases. S. 953 would amend Fed. R.
Civ. R 47(a) and S. 954 would amend
Fed. R. Crim. R 24(a) to require the
federal courts to permit counsel to
participate in voir dire. The Judicial
Conference opposes the proposed
amendments, while the ABA and the
National Association of Criminal De-
fense Lawyers support them.

• Three bills have been introduced
that are intended to reverse or limit
Pulliam V. Allen's effect on judicial im-
munity. Sen. Heflin and Sen. Orrin
Hatch (R-Utah) introduced S. 1515,
intended to address both the attor-
neys' fees and injunctive relief aspects
of Pulliam. The bill would amend 42
U.S.C. § 1988 and 42 U.S.C. § 1983.
Another bill, S. 1512, was introduced
by Sen. Hatch with Sen. Strom
Thurmond (R-S.C.) and Sen. Heflin as
cosponsors. It addresses only the at-
torneys' fee issue raised by Pulliam, by
proposing to amend § 1988.

Finally, § 614 of S. 1482, the Judicial
Branch Improvements Act of 1987,
would also limit the Pulliam holding as
to attorneys' fees, as recommended by
the Judicial Conference. The act also
incorporates a number of other Judi-
cial Conference recommendations
(see The Third Branch, June 1987, at 2,
and August 1987, at 5).

• S. 548, passed by the Senate, in-
cludes a provision amending the 1986
bankruptcy legislation (Pub. L. No.
99-554) to make clear that bankruptcy
cases filed under Chapter 1 1 by family
farmers prior to the enactment of the
1986 act can be converted from Chap-
ter 11 to Chapter 12 filings (see The
Third Branch, July 1987, at 7).

• H.R. 3002, to amend ch. 215 of 18
U.S.C. to provide certain rights for
persons who are subject to grand jury
investigation, was introduced by Rep.
Harold Ford (D-Tenn.).

• During consideration of funding
for the National Childhood Vaccine
Injury Act (see The Third Branch, Feb.
1987, at 2), lawmakers at the subcom-
mittee level of the House Committee

New FJC Study Finds

Decrease in Summary

Judgments

The number of summary judg-
ments under Federal Rule of Civil
Procedure 56 appears to have de-
creased in recent years, at least prior
to three recent Supreme Court deci-
sions clarifying the standards for
summary judgment. A study re-
cently published by the Center,
Summary judgment Practice in Three
District Courts, by Joe Cecil and
C. R. Douglas, found that although
summary judgment motions were
filed in approximately the same per-
centage of cases in early 1986 as in
1975, the percentage of cases termi-
nated by summary judgment de-
creased by approximately one-half
over the 11 -year period examined.
The study also found that sum-
mary judgment motions by defend-
ants are far more common than
summary judgment motions by
plaintiffs and are especially com-
mon in multiparty cases. Approx-
imately one-third of the motions are
granted in whole or in part, one-
third are denied, and no action is
taken by the court in the remaining
third. A review of findings in other
studies indicated that summary
judgments are reversed on appeal at
a rate that closely approximates the
overall rate of reversal for all civil
appeals.

After these data were collected,
several decisions by the Supreme
Court clarified the standards for
summary judgment in a way that
may result in an increase in sum-
mary judgments. The findings pre-
sented in this 12-page paper provide
a measure against which any such
change may be assessed.

Copies of the paper can be ob-
tained from Information Services,
1520 H St., N.W., Washington, DC
20005. Please enclose a self-
addressed unfranked mailing label,
but do not send an envelope.

on Ways and Means expressed reser-
vations about funding the act beyond
the extent of cases in which the injury
has already occurred. ■

theTHDRDbranch

QUINLAN, from page 1

Did you have any specific changes
in mind when you became director?
Norm has left the agency in great
shape, to build upon, not to really
change. Some of the things that 1 am
emphasizing in my early days as di-
rector would have changed even if
Norm were still here. He was part of
the process and very much supported
these changes.

My biggest concern is the growing
inmate population. In 1981, our popu-
lation was 24,000; today it is 44,000.
The Bureau of Prisons has grown 83
percent in six and a half years and is
now 58 percent over its design capaci-
ty. The projections with the sentenc-
ing guidelines and the Anti-Drug
Abuse Act indicate that there may be
as many as 100,000 people in federal
prisons by 1997. What we are trying to
do is not only ensure that we have the
resources to house these people, but
more importantly to ensure that we
have the best staff to manage the facili-
ttes we will have to operate. My major
initiahve since becoming director, and
part of the time as deputy director, has
been a new emphasis on human re-
source development — emphasizing
new techniques in recruitment, new
programs for training, and, most im-
portantly, new career development
programs that will enable the Bureau
of Prisons to identify at the earliest
possible stage the potential managers
and leaders of tomorrow, give them
training opportunities and cultivate
them to the point where they can be-
come leaders. Most of our training is
done in Glynco, Ga., at the Federal
Law Enforcement Training Center.
We have excellent instructors that
train all new employees for three
weeks — three weeks of training for
every new employee in the Bureau of
Prisons, whether they be a correc-
tional officer, a doctor, a chaplain, a
teacher, a secretary. This training in-
cludes self-defense, firearms, and
training in interpersonal relation-
ships.

What continuing training do em-
ployees get?

Every year employees receive 40
hours of training at their institution.
There are also other training pro-
grams offered — supervision courses
for new managers and specialty train-
ing for case managers, unit managers,
and security officials.

Our primary emphasis is on se-
curity, obviously. We can't become

penalty, which we support for those
inmates already serving multiple life
sentences who murder again while in
prison.

We have also had a dialogue on al-
most a weekly basis with Judge
Wilkins, Michael Block, Helen Cor-
rothers, and other members of the
commission on different issues that

"My biggest concern is the growing inmate population. In
1981, our population was 24,000; today it is 44,000."

complacent about our initial respon-
sibility to deal with the security and
safety of institutions. But we also
must train people, as they move up
the ranks, in how to manage, how to
develop, how to motivate, how to en-
courage and train other people to do
the kinds of things that are necessary
in an institution to make it safe and
humane.

Did you have an opportunity to
have some input into the sentencing
guidelines?

Norm had an opportunity to testify
on the guidelines process. He was
generally supportive of the process,
but concerned that prisons be re-
served for those most needing con-
finement: the violent and those who
commit the most serious crimes. 1 had
an opportunity to testify before the
commission on the issue of the death

relate to the Bureau of Prisons, par-
ticularly the impact of the guidelines
on our population, the kinds of pris-
ons that might be needed, and things
of that nature. We also have a staff
member detailed to the commission
on almost a full-time basis to work on
the issue of population projections.

What is your stand on privatiza-
tion?

We have been involved in privatiza-
tion for a long time in terms of private
operation of halfway houses. We have
3,200 federal prisoners currently serv-
ing time in privately run halfway
houses. We also have been using pri-
vate contracts for a number of years
for housing specialty-type offend-
ers— females, juveniles, sentenced al-
iens. We combine our efforts with
those of the Immigration Service in
Texas and Colorado for the housing of

BULLETIN OF THE
FEDERAL COURTS

sentenced aliens, and we contract out
certain functions such as medical and
food services.

We have had mixed experiences in
both of these areas, but we are willing
to pursue privatizahon further. One of
the initiatives that the administration
is looking at and analyzing is the serv-
ices offered by the private sector. At
this point, no one has any experience
doing what we do in terms of provid-
ing medium or maximum security
prison operations. All of the efforts in
privatization have been at the lower
end of the security spectrum, at the
minimum security level. And the
analyses that we have done have
shown that we can do it more cost-
effectively because of our staff to in-
mate ratio. The cost of feeding is very
low; we average about $2.35 a day per
inmate in institutional feeding. We
have found that comparing all the
costs, including capitalization, de-
preciation, staff retirement, and over-
head cost in the central and regional
offices— when you add all those in,
we are still 20 percent under the costs
available in the private sector. So, in
looking at privatization, we have
found that nobody is yet ready or able
to compete with us in a cost-effective
manner.

There are some very serious policy
questions involved in the privatization
issue: whether it is legal, whether, as a
policy initiative, we want to do it.
American University Professor Ira
Robbins has been studying the pri-
vatization of corrections as part of the
ABA Criminal Justice Committee,
and we expect a report some time later
this year

What is the Bureau's relationship to
the National Institute of Corrections?
The National Institute of Correc-
tions, as a part of the Bureau of Pris-
ons, is able to provide training to a
couple of different target groups—
primarily to mid-level managers as
they become potential leaders of state
and local correctional agencies. They
also focus on training trainers, so that
state personnel can go back and train
others. They have a technical assist-

ance responsibility by which they
provide an expert to a state or local
government to improve, for example,
security, case management, unit man-
agement, or prison design. They have
been focusing a lot of their attention
most recently on two very critical
issues — AIDS and overcrowding.

How much input does the Bureau
have in designating the place of incar-
ceration of a convicted defendant?

We — the attorney general and the
director of the Bureau of Prisons —
have the authority to designate where
a prisoner is going to serve his or her
sentence. Many times judges call be-
fore sentencing and they make rec-
ommendations. They say, "If I sen-
tence this fellow to 15 years, and he's
got this kind of a history, where
would you want to put him?" or
"Would you mind if I recommended
that he go to Fort Worth?" We look at
the case and call the judge back and
say, "Fort Worth would be fine," and
the judge will recommend Fort
Worth. But generally speaking, most
judges will not call first; all they will
do is make a recommendation, which
we will always try to fulfill and honor.
But there are cases in which we cannot
do that. There may be people at the
prison recommended by the judge
who would be a threat to that pris-
oner, or the prison may not provide
enough security based on our analysis
of the prisoner's security needs, or
there may be a medical problem that
needs to be addressed in one of our
medical facilities. If we cannot honor
the court's recommendation, we will
write the judge and explain our
reasons.

Will the Bureau be recommending
that more prisons be built?

The Department of Justice will be
recommending to the Office of Man-
agement and Budget and to the Con-
gress additional building to meet the
overcrowding that we have. We have
already received new resources to
cope with the problem of growth. In
fact, since 1981, we have added 4,500
beds to our capacity. In addition, we
See QUINLAN, page 8

IHE

HE 50URCE

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 mailing label,
preferably franked (but do not send an envelope),
and addressed to Federal judicial Center,
Information Services, 1520 H Street, N.W.,
Washington, DC 20005.

Althouse, Ann. "How To Build a Sepa-
rate Sphere: Federal Courts and State
Power." 100 Harvard L. Rev. 1485 (1987).

Brennan, William J., Jr. "Tribute to Jus-
tice Thurgood Marshall." 40 Arkansas L.
Rev. 661 (1987).

Brest, Paul. "Congress as Constitutional
Decisionmaker and Its Power To Counter
Judicial Doctrine." 21 Georgia L. Rev 57
(1986).

Committee on Federal Courts. "Budget
Deficits and the Federal Courts." 42 Record
of the Association of the Bar of the City of New
York 673 (1987).

Burbank, Stephen B. "Politics and Prog-
ress in Implementing the Federal Judicial
Discipline Act." 71 fudicature 13 (1987).

Coffin, Frank M. "The Law School and
the Profession: A Need for Bridges." 11
Nova L. Rev. 1053 (1987).

Colby, Paul L. "Two Views on the Legit-
imacy of Nonacquiescence in Judicial
Opinions." 61 Tulane L. Rev. 1041 (1987).

Davis, Peggy C. "There Is a Book
Out . . .': An Analysis of Judicial Absorp-
tion of Legislative Facts." 100 Harvard L.
Rev 1539 (1987).

Dumbauld, Edward. "Protest and Tri-
umph: The Bill of Rights," in Pennsylvania
and the Federal Constitution. Pennsylvania
Historical Association, 1987.

Flanders, Steven. "Judicial Discipline,
Criminal Prosecution and Impeachment."
11 Justice System /. 394 (1986).

Griswold, Erwin N. "The Federal
Courts Today and Tomorrow: A Summary
and Survey." 38 South Carolina L. Rev. 393
(1987).

Heydebrand, Wolf, and Carroll Seron.
"The Rising Demand for Court Services: A
Structural Explanation of the Caseload of
U.S. District Courts." 11 justice System /.
303 (1986).

Lay, Donald P "The Constitution, the

Supreme Court, and Mr. Meese: Habeas

See SOURCE, page 10

theTHIHDbranch

QUINLAN, from page 7

have 7,000 beds currently under con-
struction, including 7 new institu-
tions, and we have 2,400 addihonal
beds in our FY 1988 budget request
pending before the Congress.

For the most part, our cells are de-
signed for one person; however, al-
most universally around the federal
prison system, there are now two
people in those rooms except at the
highest level security facilities, such
as Marion, and at other penitentiaries.
Part of the FJC orientation program
for newly appointed judges includes
a day at a federal correctional facility.
Does the Bureau make other arrange-
ments for judges to visit prisons?

Well, there are a number of judges
who really are very active in visiting
federal institutions. I would like to en-
courage judges to visit more of our
institutions, in addition to those they
are exposed to when attending Sen-
tencing Institutes. I would like to en-
courage judges to take the time be-
cause I think a very important part of
the relationship between the federal
judiciary and the Bureau of Prisons is
their understanding of exactly what
our role is, how we carry out our du-
ties and responsibilities and how the
prisoners are living in terms of the
sentences that they impose. I think
that it is very important that judges
have a comfortable feeling about how
the prisoners are being housed.

1 would say that for the most part
people in general do not understand
what prison life is like, particularly life
in federal prison. Our reputation, and
the expectation, 1 suppose, of what
prison is like is based solely on televi-
sion and movie depictions of correc-
tional institutions. Sometimes correc-
tional staff are depicted in a very
negative way, and it is important that
we show as many people as possible,
particularly federal judges, what a
professional organization this is and
how proud we are of the job we do.
I intend to write to all new federal
judges and invite them to come and
visit our institutions. I also intend to

send at the end of each year a "state of
the Bureau of Prisons" report to all
federal judges, or at least to those who
express an interest in having that kind
of report, in which I can bring them
up to date on where we are in terms of
our population, in terms of the prob-
lems, in terms of AIDS, in terms of

"I would like to encour-
age judges to visit more
of our institutions."

drug programming and things of in-
terest to the court, study and observa-
hon cases — how many we have done,
etc.

We also have, through the Sentenc-
ing Institutes that we participate in
with the Judicial Center, active in-
volvement in trying to meet as many
members of the judiciary as possible.
We encourage them to call us if they
have questions or concerns.

The press sometimes refers to
"country club" incarceration. Is there
such a thing?

i have been superintendent of a fa-
cility in Florida known as Eglin Air
Force Base Federal Prison Camp, and
people have called Eglin a "country
club." But I never met a prisoner who

served time in that facility, nor have I
ever heard from anyone, who said
that they wanted to come back. 1 think
inmates respect the fact that we treat
them as human beings and that they
are given an opportunity to work and
to have recreation and to participate in
education programs. The environ-
ment may look good, but deprivation
of freedom is central to what prison
and removal from society is all
about— and nobody volunteers to
come in.

How has AIDS affected the Bu-
reau's mission?

First of all, AIDS has not been a
major problem thus far, although
from all projecrions, it is going to be-
come a greater problem in the future.
Since 1981, when statistics were first
kept on inmates with AIDS, we have
had a total of about 80 people in
federal prisons who have had AIDS,
most of whom have subsequently
died or been released. We have now
about 25 men and women in federal
prison who have AIDS. We also have
an additional group who have AIDS-
Related Complex (ARC), and we also
have prisoners who have been tested
and have been found positive for the
HIV virus [the virus suspected of
causing AIDS]. That group— the
ARCs and the positives for the virus-
amounts to about another 200 pris-
oners out of the 44,000 total in the
system.

As of June 15, we began testing all
newly received sentenced prisoners
and all prisoners 60 days before re-
lease. The results of those tests are
just starting to come in, so we do not
have any data yet. However, it is ex-
pected that we will continue the tests
on all newly received sentenced pris-
oners through the end of September
and that we will then evaluate
whether we should continue that
program.

At this point, we only separate
those prisoners who have the full-
fledged illness. If they are male, they
are housed at our medical center in
Springfield, Mo., and if they are
female, at the medical center in Lex-

BULLETIN OF THE /rtjK
FEDERAL COURTS ^1^

ington, Ky. All of the prisoners who
have the virus, or those who have
ARC (which means that they have had
a symptom of the disease but it is now
in remission) are kept in the prison
where they first developed the prob-
lem. If it is a security problem in terms
of it being too widely known that they
have the disease, then they are trans-
ferred to another facility. At this point
we are maintaining that those pris-
oners should be kept in the main-
stream of the prison population. We
do not advertise the fact that they are
positive or that they have ARC. We
keep it confidential except from the
doctor, the captain, the warden, and
other key staff. We also will tell the
probation officer and the community
program manager when the prisoner
is about to be released. For the most
part we have not had a problem. We
have had a couple of isolated cases
where an inmate has bitten a staff
member — one such prisoner was re-
:ently convicted of assault.

There is always new information on
low many prisoners are infected. We
ire successful now in mainstreaming,
?ut we may at some time get to the
3oint where we have to do more in
erms of separation. One of the things
would like to point out is that of all
he AIDS and ARC cases that we have
\ad thus far over 90 percent have been
elated to drugs and not homosex-
lality. The reverse is true in the com-
nunity at large, where only a small
)ercentage have been related to intra-
■enous drug abuse, and the majority
las been related to homosexual or
'isexual activity. When you think of
dDS in prison, you have to recognize
le fact that over 50 percent of the
eople who are coming into federal
risons these days have drug histo-
es. And many of them have prior IV
rug histories, where they used drugs
trough needles. That's where we are
oing to face our biggest challenge, in
ealing with these prisoners.

We developed over a year ago a
mandatory AIDS training program,
very staff member and every inmate

is shown this 30-minute videotape
about how AIDS is transmitted, and
how it can be prevented. When we
find prisoners are infected with the
disease we offer counseling from two
perspectives: We want to record their

how to deal with it from a mental
health and psychological standpoint,
and how to cope with the fact that you
have the disease or may get it. We
emphasize counseling because there
is no treatment.

"As of June 15, we began testing all newly received
sentenced prisoners [for AIDS] and all prisoners 60 days
before release. . . . When you think of AIDS in prison, you
have to recognize the fact that over 50 percent of the people
who are coming into federal prisons these days have drug
histories."

progress and counsel them from a
medical and psychological perspec-
tive.

Up unhl recently we did not test
inmates for AIDS when they entered
prison. But if a prisoner was being
treated in a hospital for a cold that
would not go away, the doctor might
say, "I am very suspicious, this cold
has been with you for two months. I
am going to test you for AIDS." At that
point, if the tests came back positive,
the doctor and the psychologist
would start counseling that individu-
al. They would make sure he was
aware of the kinds of things that must
be done from a medical standpoint:
how you can prevent transmission,
how it could be transmitted to others.

But of the 44,000-plus prisoners,
would it be true that the vast majority
have never been tested for AIDS?

A year and a half from now, the vast
majority will have been tested if we
continue, which I expect we will, this
testing program. I am not saying we
are definitely going to do it.

If a prisoner has a positive test re-
sult, nothing really has changed.
There is no treatment provided; you
can only counsel the individual. But
you run the risk when you identify
the person of making that individual a
possible victim. If it becomes known
that he is virus-infected, he could be-
come a victim of attack or assault.
These are the dilemmas we are trying
to anticipate and prevent. ■

10 ,^,^^-^

theTHDKDbranch

SOURCE, from page 7

Corpus and the Doctrine of Original In-
tent." 1986 Detroit College of Law Rev. 983.

Lively, Pierce. "A View from Below."
1986 Detroit College of Law Rev. 975.

McGillis, Daniel. Community Dispute
Resolution Programs and Public Policy. Na-
tional Institute of Justice, 1986.

Mikva, Abner J. "Congress: The Purse,
the Purpose, and the Power." 21 Georgia L.
Rev. 1 (1986).

Rains, Robert E. "A Specialized Court
for Social Security? A Critique of Recent
Proposals." 15 Florida State University L.
Rev. 1 (1987).

j^Powell, Lewis E, Jr. "Remarks to the
General Practice Session, ABA." San Fran-
cisco, Aug. 8, 1987.

i^Powell, Lewis E, Jr. "Remarks to the
Judicial AdministraHon Division, ABA."
San Erancisco, Aug. 10, 1987.

Steiner, Henry J. Moral Argument and So-
cial Vision in the Courts. Wisconsin Press,
1987.

Wald, Patricia M. "Changing Course:
The Use of Precedent in the District of
Columbia Circuit." 34 Cleveland State L.
Rev 477 (1985-86).

»^ Walsh, Lawrence E. "Truth and the
Rule of Law" (Remarks at the ABA Prayer
Breakfast), Aug. 9, 1987.

Webster, William H. "Sophisticated Sur-
veillance—Intolerable Intrusion or Pru-
dent Protection?" 1986 Detroit College of
Law Rev 1179.

i^White, Byron R. "Remarks Before
ABA Litigation Section." San Erancisco,
Aug. 10, 1987.

Wright, J. Skelly. "The Judicial Right and
the Rhetoric of Restraint: A Defense of
Judicial Activism in an Age of Con-
servative Judges." 14 Hastings Constitu-
tional L.Q. 487 (1987).

Calendar

Sept. 8-11 Seminar for New Appellate
Judges

Sept. 14-18 Orientation for New Proba-
tion & Pretrial Services Officers

Sept. 15-16 Staff Safety Program

Sept. 16-18 Third Circuit Judicial
Conference

Sept. 16-18 Bankruptcy Case Man-
agement

Sept. 21-22 Judicial Conference of the

U.S.
Sept. 28-30 Workshop for Judges of the

Seventh Circuit
Oct. 4-6 Claims Court Conference

BULLETIN OF THE FEDERAL COURTS

theTHIEDbranch

Vol. 19 No. 9 September 1987

The Federal Judicial Center

Dolley Madison House
1520 H Street, N.W.
Washington, DC 20005

Official Business

First
Class
Mail

Postage and

fees paid

United States

Courts

U.S. GOVERNMENT PRINTING OEFICE 1987-181-221-60006

BULLETIN OF THE FEDERAL COURTS

iheH

4>OCA^

y^u

BRANCH

VOLUME 19
NUMBER 10
OCTOBER 1987

\ssistant Attorney General Willard Discusses
settlement, Tort Reform, Administration Policies

Richard K. Willard is a graduate of
mory University and Harvard Laic
chool. He was in private practice in Texas
rfore coming to the Justice Department in
981 as counsel for intelligence policy,
fter one year's service as deputy assistant
torney general, he was appointed assist-
it attorney general in charge of the Civil
ivision in 1983.

You attended the conference on al-
rnative dispute resolution spon-
)red by the Administrative Con-
rence of the U.S. How enthusiastic
e you about negotiated rulemaking
id other innovations for achieving
ttlements?

We have been very open to innova-
)ns along these lines and have tried

be cooperative. A lot of people
)n't realize that there is already a
tod bit of alternative dispute resolu-
>n in some areas of our litigation. For
ample, there is an elaborate admin-
rative process under the Federal
rt Claims Act in which many claims

Richard K. Willard

are resolved before litigation ever re-
sults. We have also promulgated
guidelines for the use of minitrials in
some of our commercial disputes, and
we certainly are interested in trying
other approaches to the problem.

Sometimes people will raise ques-
tions as to why we do not settle more
See WILLARD, page 6

bngress Returns to Agenda That Includes
Omnibus Court Reform, Possible RICO Changes

The following legislative items of
:erest to the judiciary were intro-
iced before Congress recessed in
igust:

• Rep. Robert W. Kastenmeier (D-
s.) introduced H.R. 3152, the Om-
5us Court Reform Act of 1987. Cer-
n features of the bill are parallel to
me sections of the Judicial Branch
provements Act of 1987, S. 1482
■e The Third Branch, August 1987, at

The bill would, in part
Jbolish the mandatory appellate ju-
diction of the Supreme Court;
ncrease the jurisdictional amount

federal diversity jurisdiction pur-
ses from $10,000 to $50,000, allow
tain multi-state/multi-party cases
be heard in federal courts, and
>dify the definition of citizenship

for diversity cases for corporations;

reduce civil filing fees from $120 to
$90, and impose the fee on the U.S.
government; the Judicial Conference
would be authorized to set fees every
five years, provided that increases are
no more than one-third of then-exist-
ing rates;

eliminate the requirement for man-
datory annual circuit judicial con-
ferences; and

authorize pilot court-annexed ar-
bitration programs for five years.

• Sen. Howell T. Heflin (D-Ala.) in-
troduced S. 1630, a bill to provide for
enhanced retirement and survivor's
annuities for bankruptcy judges and
magistrates and for other purposes.
The bill is similar to H.R. 2586, which
See LEGISLATION, page 10

ABA Acts on Judicial
Screening Committee,
Grand Jury Principle

A number of issues were discussed
at the American Bar Association an-
nual meeting that are of interest to the
federal judiciary.

The Standing Committee on the
Federal Judiciary, the group that in-
vestigates and rates candidates for Ar-
ticle III judgeships, has been in-
creased from 14 to 15 members to
include a representative from the
Federal Circuit. Traditionally this
committee has had one member for
each of the circuits (plus a second
member for the Ninth Circuit and one
at large) but until now there has been
no member for the Federal Circuit. In
making the request the committee cit-
ed increased workloads.

A resolution of the Section on Pat-
ent, Trademark, and Copyright Law
was approved asking that nominees
for appointment to the U.S. Court of
Appeals for the Federal Circuit "re-
flect consideration of the Court's ex-
clusive appellate jurisdiction over all
patent cases; the number, size, and
complexity of the patent cases before
the Court, and the time spent by the
Court's judges on patent cases."
The ABA House of Delegates also:
• Adopted a principle related to al-
leged grand jury abuse. For many
years the ABA has taken stands on
See ABA, page 9

Inside . . .

Fifth Cir. Case ,5,/^^^

On Magistrates^.^ ^^^ -i

And Jury Section ,y .fi^_.'0^:

qC"^

=t■,■^,

Devitt Award

Nominations Sought-Jo^i^^p. 2

Judicial Fellows a\^\iV»

Selected for - f-^ v»>^^

1987-88 ••.,a%(P-3

i^^«

y^>^

theTHIEDbpanch

Fifth Circuit Holds En Banc That Magistrates
Cannot Preside Over Felony Jury Selection

5
1
J

I ;
I

A magistrate may not preside over
the selection of the jury in felony cases
under 28 U.S.C. § 636(b)(3), the Fifth
Circuit has held. U.S. v. Ford, No.
86-1098 (5th Cir. Aug. 11, 1987) (en
banc). The local rules of the Northern
District of Texas provide that a magis-
trate can preside over jury selection
"with consent of the parhes and the
District Judge," but make no explicit
provision for review of any of the
magistrate's rulings during voir dire.
Neither the government nor defense
counsel expressly consented or ob-
jected to the magistrate's presiding
over jury selection. On appeal, the
defendant argued as one of her
grounds that the district court erred in
directing the magistrate to preside
over jury selection. A panel of the
Fifth Circuit affirmed the conviction,
finding that Congress, in granting to
district judges the power to give mag-
istrates additional duties, had in-
cluded the power to direct magistrates
to preside over jury selection in felony
cases. U.S.v. Ford, 797 F. 2d 1329 (5th

Cir. 1986), cert, denied, 107 S. Ct. 964
(1987).

The court sitting en banc did not
find that Congress intended such a
grant of power to district judges. The
court also rejected the reasoning of
the three-judge panel, and held that
jury selection is an essential compo-
nent of the felony trial, which itself
may not be delegated to a magistrate.
Even were jury selection to be viewed
as a pretrial matter, the court stated
that the difficulties of review by an
article III judge of a magistrate's rul-
ings in jury selection — and the ab-
sence of a statutory procedure for that
review — left it unconvinced that Con-
gress intended to allow delegation of
felony jury selection. Since the magis-
trate had conducted the voir dire
without objection and the trial was
fundamentally fair, however, the
court stated that the error was
harmless.

The First, Second, and Ninth Cir-
cuits have permitted a magistrate to
See MAGISTRATES, page 4

200

Nominations for Devitt Distinguished
Service to Justice Award Being Accepted

Nominations for the annual Ed-
ward j. Devitt Award for Dis-
tinguished Service to Justice are being
accepted until Dec. 31, 1987. This

THETHIRD BRANCH

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.

Co-editors

Alice L. O'Uonnell, Director, Division of Inter-
judicial Affairs and Information Services,
Federal Judicial Center I'eter C; McC abe.
Assistant Director, Program Management,
Administrative Office of the U.S. Courts.

year's selection committee consists of
Justice William J. Brennan, Jr., Chief
Judge Charles Clark (5th Cir.), and
Judge Devitt. West Publishing Co.
confers the award each year to an Arti-
cle III federal judge in recognition of
accomplishments and professional ac-
tivities that have contributed to the
cause of justice. The award is named
for Edward J. Devitt, senior judge of
the U.S. District Court for the District
of Minnesota, who was chief judge of
that court for more than 20 years. Pre-
vious recipients of the award include
Judge Albert B. Maris (3d Cir.), Judge
Walter E. Hoffman (E.D. Va.), Judge
Frank M. Johnson, Jr. (11th Cir.),
Judge William J. Campbell (N.D. 111.),
and Judge Edward T. Gignoux
(D. Me.). Chief Justice Burger re-

^ * • • • •

ir ic -k -k ic ir

October 1787: Submitting the Consti-
tution to state ratification con-
ventions triggered a torrent of pam-
phleteering to influence the elec-
tions of delegates and their delibera-
tions. The authors used pseu-
donyms with indigenous references
("Federal Farmer," "Old Whig") or
names from antiquity ("Aggripa,"
"Brutus").

The best known of these efforts
first appeared in the New York press
on Oct. 27, addressed "to the people
of the state of New York," a refer-
ence to the universal (manhood)
suffrage for electing delegates to the
New York's 1788 ratification con-
vention. Its authors wrote under the
name "Publius" — probably a refer-
ence to Publius Valerius Publicola,
about whom Plutarch wrote — and
were in fact Alexander Hamilton
and James Madison, with John Jay as
a minor contributor.

Publius's essays were published in
book form as The Federalist in March
1788, even before all of its 85 essays
appeared serially in the press.

Although the essays clearly had
an immediate, partisan goal, The
Federalist has a cohesive form and
theory. On one level, it explicates
the thinking of the Constitution's
authors and is "entitled to great re-
spect in expounding the Constitu-
tion," said Chief Justice Marshall in
McCulloch. The Supreme Court has
cited it over 206 times. On a deeper
level, Publius was a spokesman for
what he called a new "science of pol-
itics," and The Federalist is by now
regarded as a classic of modern po-
litical theory.

BlCENTEffNlAX. or

ceived a special award in 1983, and th(
late Judge Edward A. Tamm was hon
ored with a special posthumou
award in 1985.

Nominations for the 1987 aware
should be submitted to Devit
Distinguished Service to Justic
Award, P.O. Box 43810, St. Paul, M^
55164-0526. '

BULLETIN OF THE
FEDERAL COURTS

Dominick, Pearson, and Sloan Selected as
Judicial Fellows for Program's 1987-88 Year

law at the University of Heidelberg

Mary F. Dominick, Albert M.
Pearson, and Judy B. Sloan have been
selected as the Judicial Fellows for
1987-88.

Ms. Dominick received her B.A.
and J.D. degrees from Vanderbilt Uni-
versity and an
^^^ LL.M. from

^^^^^L the Parker
^m ^_^^ School of For-
^■W^ *•• eignandCom-
^^^B "*■ ^B parative Law
C^^Bv ^^^k at Columbia
^^^^^^^^^^H University.
^^^^^k ^^^^^ She has most
^^^^^^^ ^^^ recently been
■^■^^^^^^IB 3 lecturer and
Mary Dominick research asso-

ciate at the
vlax Planck Institute for Comparative
Public Law
and Interna-
tional Law at
ifx'^^^^ ^^1 Heidelberg,
Germany. Her
duties there
^^^ ^^^ included re-

^f^^^f:\ ^^ porting on
current legal
developments
in the United
States, writing
for the Encyclo-
pedia on Public International Law, and
eaching a course on American private

Albert Pearson

Ms. Dominick also has worked in the
Netherlands, Switzerland, Belgium,
France, and the United States, con-
centrating on the institutional aspects
of legal and political systems. She will
be assigned to the AO.

Professor Pearson is a professor of
law at the University of Georgia,
where he has taught since 1974. He
received his B.A. from Birmingham-
_ , _ _,_ Southern Col-
"^^^ "^ lege and his
J.D. from Van-
derbilt. Pro-
fessor Pearson
clerked for
Judge Walter
P. Gewin (5th
Cir.) and then
taught at
Boston Col-
lege Law
School. He has
worked as reporter in drafting pro-
jects for the ABA and the National
Conference of Commissioners on
Uniform State Laws, and as codirector
of the annual trial advocacy program
of the Georgia Institute of Trial Ad-
vocacy. Professor Pearson has also
done trial and appellate litigation and
was an issues adviser to a candidate
for the U.S. Senate. He will be as-
See FELLOWS, page 10

ludy Sloan

\pplicattons Sought for 1988-89 Fellowships

The Judicial Fellows Commission
nvites applications for the 1988-89 Ju-
licial Fellows Program from persons
nterested in judicial administration,
he program, established 15 years
go, is patterned after the White
louse and Congressional Fellow-
hips.

Fellows will be chosen by the com-
mission to spend a year, beginning in
eptember 1988, in Washington,
^•C, at the Supreme Court, the
ederal Judicial Center, or the Admin-
itrative Office of the U.S. Courts.

Candidates should be familiar with

the judicial system, have at least one
postgraduate degree, and two or
more years of professional experi-
ence. Stipends for the fellowship are
based on salary history and compara-
ble government salaries.

Information about the Judicial Fel-
lows Program and on application pro-
cedures is available upon request
from Vanessa M. Yarnall, Associate
Director, Judicial Fellows Program,
Supreme Court of the United States,
Rm. 5, Washington, DC 20543, tel.
(202) 479-3374. Application materials
should be submitted by Nov. 30, 1987.

Personnel

Nomination

Malcolm J. Howard, U.S. District Judge,

E.D.N.C, Sept. 10
Paul V. Niemeyer, U.S. District Judge, D.

Md., Sept. 11
Frank S. Van Antwerpen, U.S. District

Judge, E.D. Pa., Sept. 11

Confirmation

David B. Sentelle, U.S. Circuit Judge,
D.C. Cir., Sept. 9

Appointments

Morton I. Greenberg, U.S. Circuit Judge,

3d Cir., June 18
H. Robert Mayer, U.S. Circuit Judge, Fed.

Cir., June 19
LaynR. Phillips, U.S. District Judge, W.D.

Okla., June 22
James H. Alesia, U.S. District Judge, N.D.

111., July 1

Elevation

Barbara J. Rothstein, Chief Judge, W.D.
Wash., Oct. 1

Senior Status

Walter T. McGovern, U.S. District Judge,
W.D. Wash., Oct. 1

Deaths

Robert L. Taylor, U.S. District Judge, E.D.

Tenn., July 11
Bryan Simpson, U.S. Circuit Judge, 11th

Cir., Aug. 22

Calendar

Oct. 4-6 U.S. Claims Court Judicial

Conference
Oct. 7-10 Metropolitan District Chief

Judges Conference
Oct. 12-14 Workshop for Judges of the

Sixth Circuit
Oct. 13-15 First Circuit Judicial

Conference
Oct. 15-17 Second Circuit Judicial

Conference
Oct. 21-23 National Conference of Bank-
ruptcy Judges
Oct. 25-28 Workshop for Judges of the

Eleventh Circuit
Nov. 11-13 Workshop for Judges of the

Fifth Circuit

THE

D BRANCH

Investigation of Judge Hastings by House
Subcommittee on Criminal Justice Continues

• n
I

Judge Alcee L. Hastings (S.D. Fla.)
has sent a letter to Rep. John Conyers,
Jr. (D-Mich.), chairman of the House
Judiciary Committee's Subcommittee
on Criminal Justice, protesting efforts
by the subcommittee to obtain grand
jury records related to the subcommit-
tee's investigation of him.

Judge Hastings was acquitted of
criminal charges in 1983. The Elev-
enth Circuit Court of Appeals later
conducted its own investigation pur-
suant to 28 U.S.C. § 372(c). The Judi-
cial Council of the Eleventh Circuit
certified to the Judicial Conference

that Judge Hastings "has engaged in
conduct which might constitute
grounds for impeachment," and the
Judicial Conference then certified to
the Speaker of the House that
"consideration of impeachment may
be warranted" in the matter (see The
Third Branch, April 1987, p. 5).

Judge Hastings was invited to sub-
mit a written response to the Eleventh
Circuit's report, which he did through
counsel. Judge Hastings's counsel has
been given access to the report, but
the report has not been made public, a
fact Judge Hastings has protested. ■

Noteworthy

Statistics on federal offenders pub-
lished. The Administrative Office of the
U.S. Courts has published Federal Offend-
ers in the United States Courts 1985, a
presentation and analysis of data for de-
fendants convicted in the U.S. district
courts during the 12-month period ended
June 30, 1985. During this period, approx-
imately 65 percent of the 53,060 defend-
ants in the U.S. district courts were
charged with offenses under the Drug
Abuse Prevention and Control Act, fraud,
traffic violations under the Assimilative
Crime Statute, larceny, or theft. The
number of defendants in the district
courts charged with immigration offenses
decreased to only 5 percent of all defend-
ants, compared with 6 percent in 1984.
Neariy three-fourths of the filings for im-
migration offenses were in the Southern
and Western Districts of Texas; the South-
ern Districts of California and Florida
accounted for 18 percent.

Of the 46,584 defendants with cases
closed, 18 percent were not convicted.
Eighty-four percent of the cases without
convictions were dismissals, while 16 per-
cent were acquittals.

The percentage of sentenced defend-
ants given terms of imprisonment de-
creased to 39 percent.

Probation officer entitled to judicial im-
munity. A probation officer is entitled to
absolute immunity from a civil suit for

damages, the Second Circuit has held.
Dorman v. Higgins, 821 R2d 133 (2d Cir.
1987). Plaintiff Dorman sought damages
and injunctive relief against a U.S. proba-
tion officer for the preparation of an
allegedly false presentence report on Dor-
man. Dorman alleged that false state-
ments appeared in the report as the result
of a conspiracy between the probation of-
ficer and the prosecuting attorney and due
to the probation officer's failure to make an
adequate investigation of the relevant
facts. Dorman alleged that his sentence of
five years' imprisonment and a $1,000 fine
for mail fraud was caused by these al-
legedly false statements, and requested
money damages and an injunction against
any further use of the report. Chief Judge
Constance Baker Motley (S.D.N.Y.) dis-
missed the complaint, ruling that a proba-
tion officer preparing presentence reports
is performing a quasi-judicial function and
is entitled to absolute immunity from suit
for damages for their improper prepara-
tion. On appeal, the Second Circuit af-
firmed, holding that the probation officer
had absolute immunity from the entire
claim for damages. "(Gjiven the propen-
sity of prisoners to file lawsuits . . . , we
perceive a need for the probation officer to
have absolute immunity from a civil suit
for damages," the Second Circuit held,
seeing "little danger" in according such
immunity, particulariy given that the re-
port is "subject to adversary scrutiny and
at least two layers of judicial review." 821
I-.2d at 138.

See NOTEWORTHY, page 5

Federal Probation Celebrates
Fifty Years

Federal Probation, the journal pub-
lished by the Probation Division of
the AO, marks 50 years in print this
year. The quarterly began as a mim-
eographed newsletter geared to-
wards persons working in the
federal probation system but quick-
ly expanded to satisfy "the diver-
gent interest and needs [of] a class of
readers engaged in various federal,
state and local preventive and cor-
rective activities in the field of delin-
quency and crime." The journal be-
came an outlet for research findings
and opinions, as well as a source of
information on innovations of inter-
est to criminal justice and correc-
tions professionals. Currently,
Federal Probation is sent without
charge to interested U.S. probation
officers, federal judges, and Bureau
of Prisons, Parole Commission, and
other federal government em-
ployees. Others may subscribe to it
(at an annual rate of $5) through
GPO.

In celebration of Federal Probation's
golden anniversary, the June 1987
issue reprinted some of the most
outstanding articles, book reviews,
and news items from past issues.
The editors also recently issued a
five-year cumulative index for
1982-86, which includes alpha-
betical listings of articles and au-
thors and a subject index. To obtain
a copy of the index, or to inquire
about subscriptions, write to Editor,
Federal Probation, Administrative Of-
fice of the U.S. Courts, Washington,
DC 20544.

MAGISTRATES, from page 2

preside over voir dire in felony cases
The Ninth Circuit cases have express
ly held that delegation of jury selec
tion to a magistrate is constitutional
The First and Second Circuits hav
held that magistrates may presid
over such jury selection if the defend
ant fails to make a contemporaneou
objection to the practice. I

BULLETIN OF THE
FEDERAL COURTS

Clncf judge Paul H. Roiiei/ (11th Cir), Chief Judge Pierce Lively (6th Cir.), and Judge
Richard S. Arnold (8th Cir ) at the recent FJC seminar for newly appointed appellate judges.

At the seminar. Prof Ronald M. Levin (Washington Univ. School of Law) talks with Judge
John C. Godbold, FJC Director (Background, Judge Frank X. Altamari (2d Cir) talks with
Columbia Univ. Law School Prof. Maurice Rosenberg.)

NOTEWORTHY, from page 4

As to the claim for injunctive relief, the
Second Circuit noted that under Pulliam v.
Allen, 466 U.S. 522 (1984), an official's en-
titlement to absolute immunity for
damages does not bar the granting of in-
juncHve relief, but the court affirmed the
district court's dismissal of Dorman's claim
for injunctive relief, noting that such users
of probaHon reports as the Parole Commis-
sion and the Bureau of Prisons were not
named as defendants, and that the allega-
tions of imminent danger of harm were
insufficient in any case.

Update on caseload in S.D. Fla. In 1982,
the caseload of the U.S. District Court for
the Southern District of Florida required
the court to ask for assistance from 48 visit-
ing judges, but in 1986, the district was
able to eliminate its visiting judge pro-
gram, and is now able to perform its work
without this "formerly needed and much
appreciated assistance," Chief Judge
James Lawrence King reported to the Elev-

enth Circuit Conference earlier this year.

Chief Judge King's report for 1986,
based upon data from the AO's Statistical
Analysis and Reports Division, showed
that during the calendar year 1986 the
Southern District of Florida was con-
fronted with the heaviest criminal case-
load of any district court in the country.
The district's judges conducted more
criminal trials, put in more criminal hours
in court, tried more felony criminal cases,
and tried more felony criminal defendants
than any court in America. In that year the
district also had more felony defendants
under probation supervision than any
court in America.

Despite the fact that criminal case filings
increased by 13.45 percent from 1985 to
1986, the district's disposition rate in-
creased by 35 percent, with 1,426 cases
terminated in 1986 compared with 1,089
terminated in 1985.

During 1986, the Southern District of
Florida averaged 53.2 jury trials per judge,
and had nearly 40,000 jurors reporting for
service. ■

Positions Available

Circuit Executive, 3d Cir. Salary to
$72,500. Works under direction of judi-
cial council pursuant to 28 U.S.C.
§ 332(e) and other statutes and rules.
Must have bachelor's degree in manage-
ment or related field, experience in
administration or equivalent. Legal
training preferred but not required. Cer-
tification pursuant to 28 U.S.C. § 322(f)
prerequisite to appointment, but ap-
plications from qualified noncertified ap-
plicants encouraged. Send resume by
Oct. 15, 1987, to William K. Slate II, 21613
U.S. Courthouse, 601 Market St., Phila-
delphia, PA 19106.

Chief Deputy Clerk, 1st Cir. Salary to
$53,830. Must be a member of the bar
and have a minimum of 6 years' pro-
gressively responsible administrative ex-
perience in public service or business.
Applications with resumes due by Nov.
2, 1987, in Clerk's Office, U.S. Court of
Appeals, 1606 John W. McCormack Post
Office & Courthouse, Boston, MA 02109.

Clerk, D.C. Cir. Open until filled.
Send resume to Mark Langer, Chief Staff
Counsel for the D.C. Circuit, 3429 U.S.
Courthouse, Washington, DC 20001.

Clerk, U.S. Bankruptcy Court, M.D.
Tenn. Salary to $69,976. Requires mini-
mum of 10 years' progressively responsi-
ble administrative experience in public
service or business, at least 3 years in a
position of substantial management re-
sponsibility. College and law school edu-
cation can be partially substituted for ex-
perience. Submit resume or application
to Hon, Keith M. Lundin, ludge, U.S.
Bankruptcy Court, 701 Broadway, 223
Customs House, Nashville, IN 37203.

Chief Pretrial Services Officer, M.D.
Fla. Salary $38,727-69,976. Statutory
position, responsible for pretrial services
and pretrial diversion in district (see 18
U.S.C. § 3152). Requires college degree,
3 years' experience in personnel work
with at least 1 year at level of probation
officer or equivalent in correctional set-
ting. Send resume by Nov. 13, 1987, to
Donald M. Cinnamond, Clerk, U.S.
Dist. Ct., Attn.: Chief Pretrial Services
Officer, PO. Box 53558, Jacksonville, FL
32201.

EQUAL OPPORTUNITY
EMPLOYERS

theTHOORDbpanch

WILLARD, from page 1

of our cases. In fact, we do settle many
cases. But the Civil Division wins
close to 90 percent of the cases that we
litigate. That suggests to me that we
are probably not missing a lot of good
settlement opportunities, and that
some of the criticism of the govern-
ment for not being willing enough to
settle comes from parties whose legal
position is not very strong in the first
place. Generally speaking, we do not
burden the courts by litigating cases in
which we are unlikely to prevail.

What has been the department's ex-
perience as a participant in court-an-
nexed arbitration?

Our experience has been that this
approach can be very helpful in cases
involving very specific kinds of factual
inquiries. Such fact-intensive cases
will often arise under the Federal Tort
Claims Act, the Longshoremens Act,
or the Miller Act. On the other hand,
this kind of procedure will not be very
helpful if you have a claim for equita-
ble relief or where legal issues pre-
dominate. No one would suggest, for
example, that court-annexed arbitra-
tion should be employed if someone
is suing to have a statute declared un-
constitutional. So as long as programs
like this recognize that some kinds of
government litigation really are not
suitable for arbitration, we are very
happy to cooperate.

You chaired the administration's
Tort Policy Working Group. Where do
its proposals stand today?

This has been a major priority, and 1
believe that it has paid off. Since we
issued our original report in February
1986, over two-thirds of the states
have adopted one or more of our rec-
ommended changes in their tort law.
Very rarely do you get this many
states adopting a particular kind of
legislation in such a short time span,
especially legislation making such far-
reaching changes in a major area of
the law. This has been a phe-
nomenally successful legal reform
movement.

Will the Tort Policy Working
Group be issuing additional reports?

The group is ongoing, and I suspect
that as the need arises we will make
other reports. I should point out that
our group does not do empirical re-
search or that kind of thing. We help
develop the administration's position
on these issues, but we are not a think
tank. We draw heavily on the work of
scholars and think tanks such as the
Rand Corporation.

not go into effect unless and until
funding legislation is passed. We tried
to make it very clear that substantial
changes in this legislation are neces-
sary before the administration could
agree to any funding proposal. We
have been particularly outspoken
about the fact that the existing legisla-
tion would saddle the courts, for the
first time, with the responsibility for

"[0]ver two-thirds of the states have adopted one or more
of our recommended changes in their tort law."

Are you pleased that so many of the
tort reform initiatives have been at
the state level rather than the federal?

Yes, this has been a key part of our
strategy. We opposed efforts to
federalize tort law across the board,
believing that it should remain pri-
marily a state responsibility. We did
support federal tort reform legislation
in limited areas where we thought it
was appropriate, such as products
that are sold nahonwide, or in defin-
ing the liability of the federal govern-
ment itself or its contractors. But
beyond those limited areas, we al-
ways felt that tort reform is a job for
the states. And, to the extent tort re-

administering a welfare entitlement
program rather than simply con-
ducting judicial review of an executive
agency's decisions.

Now a lot of people say, "Oh well,
this will be a very small program." But
we have learned from our experience
with the black lung program and oth-
ers that confident predictions that en-
titlement programs will remain small
frequently turn out to be wrong. Of
course, the number of children who
are actually injured by vaccines is be-
lieved to be quite small. However,
given the large number of children
who receive vaccines each year and
who later are found to suffer from

"We opposed efforts to federalize tort law across the board,
believing that it should remain primarily a state
responsibility."

form at the state level succeeds, it
lessens the need for federal
legislation.

What is your position on the com-
pensation program of the National
Childhood Vaccine Injury Act?

The administration is strongly op-
posed to this title, and it was very
reluctantly approved by the President
last year only because it was attached
to legislation that contained a number
of other very desirable provisions.
Since he does not have a line item
veto, he had to either accept it all or
reject it all. He decided to accept it,
partly because the vaccine title does

various kinds of mental and neu-
rological problems, 1 think that poten-
tially we could see tens of thousands
of claims a year being filed under this
program.

What is your position on drug
testing?

1 have been heavily involved in the
administration's policy in this area. I
participated in drafting Executive
Order 12,564, which mandates drug
testing for government employees in
sensitive positions. In the Civil Divi-
sion we have been handling litigation
all over the country about this issue.
So far we have won all of the cases at

BULLETIN OF THE
FEDERAL COURTS

the court of appeals level. The result at
the district court level has been more
mixed, although lately we have won
several significant cases. I think this is
one of the leading federal constitu-
tional issues that is currently being
litigated .

Is there a trend in who files such
cases?

Most of the litigation seems to be
brought by government employee
unions, although some cases are
brought by individuals.

What is your view on the various
proposed RICO changes?

We believe that the civil RICO reme-
dy has turned into something far dif-
ferent from what was originally envi-
sioned. It is rarely used as a way of
attacking organized crime, and in-
stead seems to have turned itself into
an all-purpose federal fraud statute,
which is used primarily to seek treble
damages in business and commercial
disputes. The result has been a mush-
rooming number of cases including
nvil RICO allegations. For example,
;here is one case currently being liti-
gated in which former President Mar-
ios of the Philippines has been sued
3n a civil RICO theory, the allegation
?eing that under his presidency the
government of the Philippines was a
•acketeer-influenced corrupt organi-
sation. This illustrates how strange
>ome of the theories are. We do not
hink that this is what Congress in-
ended, and the administration favors
egislation that would greatly restrict
he ability of private parties to bring
:ivil RICO actions.

You supervise about 130 tort law-
r'ers who defend the federal govern-
ment in tort litigation. You have ap-
proved or recommended to the depu-
y attorney general that about one-
lalf billion dollars of taxpayer money
56 spent on settling tort cases. Do you
lave a position on the proposals that
lave been made for amending rule 68
)f the Federal Rules of Civil Pro-
edure, with the goal of putting more
teeth" into it?

We certainly support the goal of try-
ng to create incentives for people to

avoid frivolous litigation and to settle
cases that ought to be settled.
However, I do not believe we should
discard the basic American rule on
attorneys' fees without a great deal of
thought and study. We should be
careful that any change in rule 68 is
not designed in a way that will result

Richard K. Willard

in virtually automatic fee shifting. In
addition, the department's position is
that a sweeping change in rule 68
should be considered through legisla-
tion rather than as a rules
amendment.

Some tort reform efforts appear to
be couched in terms of issues about
the role of juries and their discretion.
What is your view of this aspect of
tort reform?

My view is that the proper role of
the jury is to decide the facts, not to
make public policy. If the standard of
tort liability is so broad that it allows
each jury to decide without real legal
constraint when liability should be
imposed, then the jury moves out of
the fact-finding realm and into the
policymaking realm. Such policymak-
ing is more appropriately the job of

elected representatives. I think juries
are very good for finding facts, and I
am very comfortable assigning them
that role. But I do not think juries are
well suited to decide questions of eco-
nomic and regulatory policy in the
guise of tort litigation.

The United States brought a civil
suit in France against a terrorist who
was implicated in a 1982 shooting,
and the U.S. won a symbolic mone-
tary award.

Do you coordinate the filing of civil
suits against foreign nationals or in
foreign jurisdictions with the State
Department legal adviser or any
other officials?

We have an Office of Foreign Litiga-
tion in the Civil Division, which is
responsible for litigation in foreign
courts. It is basically a coordination
office, since the actual conduct of liti-
gation is assigned to attorneys in the
foreign countries involved. Currently
the office is handling about 800 cases
in 50 countries. We customarily retain
foreign counsel, since our lawyers are
not licensed to practice in foreign
countries. In most major countries,
we have established relationships
with attorneys that represent the U.S.
We do work closely with the State De-
partment on matters of foreign litiga-
tion to make sure that foreign policy
considerations are fully reflected in
our position. This was our approach,
for example, in this French terrorist
case. We retained a French advocate to
represent the United States as a civil
party in that criminal proceeding,
which is a form of participation that is
available under the laws of France.
Civil Division attorneys, working
with the State Department, assisted
the advocate in obtaining a successful
resolution of the case.

What has the Civil Division done
about litigation over Social Security
disability benefit claims?

We had a crisis in Social Security
disability litigation several years ago,
brought about by a number of factors.
In 1980, Congress passed legislation
requiring the Social Security Admin-
See WILLARD, page 8

THEIHIRD BRANCH

WILLARD, from page 7

istration to review disability cases to
see whether benefits should con-
tinue. As a result of that review proc-
ess, a lot of people were taken off the
disability rolls, and they then sought
review of that action. This produced a
heavy wave of litigation and a lot of
tension between SSA, the Justice De-
partment, and the courts. By 1984, for
example, our success rate in Social Se-
curity cases had dropped to an all-
time low, with the government being
affirmed by the court only about 38
percent of the time (not counting the
cases that were remanded).

We did several things to try to turn
that situation around, and I think it is
a lot better now. One, we worked with
Congress to pass the 1984 reform leg-
islation providing clear guidance to
the courts and to SSA on how to han-
dle some of these issues that had been
creating problems. Second, we
changed the so-called nonacquies-
cence policy in 1985, so that SSA now
complies with circuit precedent rather
than ignoring it. Third, we took ad-
ministrative steps to improve the han-
dling of the cases in terms of filing
answers and transcripts of the admin-
istrative proceeding. I understand
that now an answer and transcript are
filed within 60 days in about 83 per-
cent of those cases. This is a great
improvement on the timeliness of
those filings. Finally, we have in-
stituted with HHS a supplementary
review process, so that after lawsuits
are filed we take a careful look at the
cases. If we think the decision may not
comply with applicable legal require-
ments, then we will voluntarily seek a
remand before the court's time and
effort are wasted on a case that may
not be defensible. Over 1,900 cases
have been taken back voluntarily un-
der that program.

All of these efforts have been aimed
at improving the credibility of the gov-
ernment in litigating these cases, and i
think those efforts have been paying
off. In 1986 our affirmance rale, ex-
clusive of remands, was up to 62 per-
cent. It still is not as high as I would

like to see it, but I think that as a result
of these and other efforts, we will be
presenhng stronger cases.

Do you favor a special court to han-
dle Social Security cases?

We have looked at the possibility of
creating a specialized Article I tribunal
for Social Security cases. We support
the general idea, and I have been
working with members of Congress
and others to develop interest in it. I
think that it is going to require a long-
term effort to achieve such a court,
and we will have to deal with the po-
litical sensitivities of the Social Se-

"[W]e have a choice to
make .... Either [our Ar-
ticle III judiciary] will
become a vast bureaucracy
like many European coun-
tries have, or we will have
to cut back sharply on the
kinds of cases that come
into the system."

curity program. We will need to as-
sure people that this is not an effort to
downgrade the protection given to
Social Security claimants and that a
specialized court of this nature can be
a high quality court that provides fair
treatment. If we can meet these con-
cerns, then there is a chance that this
kind of specialized court would be set
up.

In a Third Branch interview last
year. Chief Judge Lively commented
on the large number of Social Se-
curity cases in the Sixth Circuit.

I understand his concern. However,
the Article III judiciary sits at the top
of a very broad pyramid. About two
million claims a year are filed for So-
cial Security disability benefits and
only about 25,000 lawsuits are filed by
people who are denied benefits and
seek judicial review. So the courts may
think it is a tidal wave of cases, but if
you consider the two million cases
that originally come in, 25,000 is not a

high percentage. Also, these 25,000
cases are not a representative sample.
The government never seeks review
in cases where benefits are granted.
And even of the cases where benefits
are denied, presumably those claim-
ants who have stronger cases are
more likely to seek judicial review.

Have you taken a stand on the pro-
posal for an intermediate national
court of appeals? Chief Justice Burger
had proposed that the incumbent
members of the courts of appeals
should serve on such a panel; Chief
Justice Rehnquist suggests a new na-
tional court of appeals constituted by
Article III judges specifically ap-
pointed to this court.

I think that we have a choice to
make about the nature of our Article
III judiciary. Either it will become a
vast bureaucracy like many European
countries have, or we will have to cut
back sharply on the kinds of cases that
come into the system. My preference
would be to restrict the caseload, sc
that the federal judiciary can retain its
distinctive character as an elite brancli
of the government which handles th€
kinds of cases that are significant
enough to require the attention of ar
Article III court. Routine and re
petitive litigation should be placed ei
ther in state courts or in specializec
federal courts.

Unfortunately, Congress is goin^
the opposite direction, as in the child
hood vaccine program. Congress
seems intent upon puthng more anc
more kinds of routine entitlemen
cases into the federal courts. We hav(
proposals, for example, to provide fo
judicial review of Veterans Admin
istration benefit determinations
which would certainly increase th(
caseload. We cannot have it botl
ways. We cannot constantly expanc
the caseload of the federal courts anc
at the same time expect the judiciar;
to remain a small, high-quality, non
bureaucratic institution.

Would you favor elimination of di
versity jurisdiction cases in th
federal courts?

See WILLARD, page

BULLETIN OF THE /TtjK
FEDERAL COURTS rL^

MILLARD, from page 8

I would certainly favor legislation,
nd I think it would not be very con-
■Qversial, to eliminate federal juris-
iction for automobile accident cases,
?gardless of the amount of controver-
y. These days, simply raising the
mount of controversy would not
liminate many cases, since it is not
ard to allege $100,000 or more in
ain and suffering even in a routine
)rt case. I would also favor eliminat-
ig diversity jurisdiction in cases
'here you have an in-state plaintiff. It

hard to see why an in-state plaintiff
lould be entitled to select a federal
»rum, since such a plaintiff is pre-
imably not likely to be the subject of
rejudice in his own local state court,
hose two steps alone would elimi-
ite perhaps half of the diversity
ises. Other measures may be justi-
?d as well, but I think the time has
)me to find ways to reduce the
amber of diversity cases without
eating the issue as an all-or-nothing
"oposition.

Do you have any special ideas or
ly message for the federal judges?
Well, I have a couple of ideas. One is
at district judges should be more

receptive to motions to dismiss or mo-
tions for summary judgment, and
that appellate courts should be more
willing to affirm those decisions. A lot
of litigation really is not meritorious,
and yet it drags on. It consumes time
and resources of the parties and the
courts. I think that parties need to be
more aggressive in filing dispositive
motions when warranted. I think that
some judges will not face up to a

"We cannot constantly ex-
pand the caseload of the
federal courts and at the
same time expect the judi-
ciary to remain a small,
high-quality, non-
bureaucratic institution."

tough legal question in the hopes that
the case will go away or get settled.
This is not true of all judges, by any
means, but there are some judges
who are very reluctant to dismiss
cases without allowing discovery,
without letting the case "percolate"
around for a while. Similarly, I think a

BA, from page 1

rand jury procedures, state and
deral, and the ABA's Section of
riminal Justice has drafted a Model
rand Jury Act and over 30 Grand
iry Principles. The principle
iopted this year. No. 32, relates to
■etrial disclosure to indicted defend-
its of "all relevant matters occurring
?fore the grand jury." The Federal
ules of Criminal Procedure and 18

• S.C. § 3500 permit substantial dis-
osure, but with certain qualifica-
3ns. The need for this additional
and jury principle, the ABA con-
nds, stems partly from the Supreme
hurt's decision in U.S. v. Mechanik,
'5 U.S. 66 (1986).

• Approved additions to the ABA
andards for Criminal Justice on
ental health standards entitled
-ompetence and Capital Punish-

ment." Previously the criminal justice
standards have not addressed the
subject of posttrial mental compe-
tence. Fordv. Wainwright, 477 U.S. 399
(1986) and other recent capital cases
have prompted the ABA to recom-
mend this standard.

• Supported reauthorization of in-
dependent counsel provisions of the
Ethics in Government Act of 1978, re-
vised to provide for limited judicial
review of the Attorney General's deci-
sions not to seek appointment of inde-
pendent counsels and to clarify that
the court has power to expand the
scope of an independent counsel's
investigation.

• Urged Congress to increase the
salaries of U.S. bankruptcy judges
and magistrates.

• Urged amendment of Federal
Rules of Civil Procedure and state civil

lot of appellate courts are too willing
to be "Monday morning quarter-
backs" and reverse a summary judg-
ment by finding a lurking fact issue.
And after that happens a few times, a
trial judge becomes understandably
gun-shy. And yet if judges would be
more forthright — and appellate
courts more understanding — in dis-
missing cases on legal grounds, that
would help get rid of litigation that is
not going to be successful and dis-
courage the filing of unmeritorious
lawsuits.

Here in Washington we also see a
lot of what I call political lawsuits —
lawsuits that have no real prospect of
success but which are a good way to
generate publicity. Usually there is a
big headline when the suit is filed,
and maybe bare mention on the back
page when the case is ultimately dis-
missed. I think courts should be more
vigilant in not allowing themselves to
be used as a vehicle for such political
theater. We intend to seek more ag-
gressive use of rule 11 in situations
where people file cases for their im-
pact in Congress or in the media
rather than because there is any real-
istic prospect of prevailing. ■

procedural rules relating to pleading
and discovery of net worth relative to
punitive damages.

• Supported a resolution on pend-
ing legislation to close loopholes in
the premerger notification reporting
requirements of title II of the Hart-
Scott-Rodino Antitrust Improvements
Act of 1976.

• Supported legislation to amend
the existing federal statute relating to
judicial disqualification. The legisla-
tion would make disqualification dis-
cretionary when a judge or a member
of the judge's family has a financial
interest that may be substantially af-
fected by the outcome of a case, but
would provide that another, disin-
terested judge be appointed to deter-
mine whether the disqualification is
warranted.

See ABA, page 10

THE

BRANCH

:
I

I :
1

LEGISLATION, from page 1
Rep. Kastenmeier introduced in the
House in June of tiiis year (see The
Third Branch, July 1987, at 2).

• Sen. Howard M. Metzenbaum
(D-Ohio) introduced S. 1523, to
amend the civil provisions of the
Racketeer Influenced and Corrupt
Organizations Act (RICO). The bill
would amend the across-the-board
award of automatic treble damages
under civil RICO and provide dif-
ferent remedies depending on the cir-
cumstances of the case: (1) "general
purpose" units of government, in-
cluding federal, state, and municipal
entities, as well as plaintiffs suing de-
fendants previously convicted of a
RICO violation or of an underlying
criminal act, would still be able to re-
cover automatic treble damages; (2)
consumers and "special purpose"
units of government would be en-
titled to recover up to two times the
amount of their actual damages in
most cases; (3) other plainhffs, includ-
ing business plaintiffs, would be able
to recover actual damages, costs, and
attorneys' fees; and (4) in securihes
litigation, certain special provisions
would apply to small investors. The
bill would also remove the "racketeer"

label and provide for limited
retroactivity.

• Rep. Rick Boucher (D-Va.) intro-
duced H.R. 2983, a RICO reform bill
identical to S. 1523 except for the
provisions relating to small investors
and retroactivity. Rep. Boucher's bill is
virtually identical to a bill which failed
to pass in the 99th Congress as H.R.
5445 (see The Third Branch, Oct. 1986,
at 7).

• Rep. Peter Rodino, Jr. (D-N.J.) in-
troduced H.R. 3227, to create a
Federal Courts Study Commission. ■

FELLOWS, from page 3
signed to the Supreme Court.

Professor Sloan is an associate pro-
fessor at the University of Toledo Col-
lege of Law. She received her B.A.
from the University of Chicago and a
J.D. from the University of Maryland.
She worked as an Asper Fellow to
Judge R. Dorsey Watkins (D. Md.).
She has taught commercial law,
contracts, sales, and secured transac-
tions. She has also studied interna-
tional law at The Hague, the philo-
sophical and underpinnings of the
Constitution, and the Chinese legal
system. She has written articles on

BULLETIN OF THE FEDERAL C0URT5

theTHM3bbanch

antitrust enforcement and the con
fidentiality of psychotherapeutic rec
ords. Professor Sloan will be assignee
to the FJC's Research Division. I

ABA, from page 9

• Urged Congress to repeal provi
sions of the National Vaccine Injur;
Compensation Program of 1986
which is seen by some critics as re
quiring federal courts to render ad
visory opinions and to perform inap
propriate administrative functions
Legislation has been passed establish
ing the compensation program, bv
Congress has not yet funded th
program.

• Disapproved a resolution the
recommended the establishment c
the U.S. Court of Military Appeals c
an Article III court.

• Withdrew a resolution submitte
by the Antitrust Law Section callin
for amendment to Fed. R. App. ]
35(a), which relates to en bancs in tli
federal circuits.

For further information on these (
other matters considered at the mee
ing, call Alice O'Donnell at the FJ
(FTS 633-6359).

First
Class
Mail

Vol. 19 No. 10 October 1987

The Federal Judicial Center

DoUey Madison House
1520 H Street, N.W.
Washington, DC 20005

Official Business

Postage an(
fees paid
United Stat(
Courts

U.S. GOVERNMENT PRINTING OFFICE 1987-181-221-60007

BULLETIN OF THE FEDERAL COURTS

BoCG

«f%^j

s,% i»J"^" *-"

THElHH

i/owse of Rqjresentatives Votes Not to^^
Effective Date of Sentencing Guidelines

VOLUME 19
NUMBER 11
NOVEMBER 1987

The House of Representatives voted
231 to 183 on Oct. 6 not to delay the
Nov. 1, 1987, effective date for the
guidelines of the U.S. Sentencing
Commission. Delay of the implemen-
tation date would have required a
two-thirds vote.

The House Judiciary Committee
had approved by voice vote a measure
that would have required a 9-month
delay A bill was also pending in the
Senate to delay implementation of the
guidelines for 12 months. The Judicial
Conference had called for a 12-month
delay in the effective date (see story
on Judicial Conference, p. 3).

Proponents had stated that delay-
ing the effective date would allow ad-
ditional time for training judges, pro-
bation officers, and attorneys in the
use of the guidelines; permit testing of
the guidelines for problem areas; and
enable the Commission to respond to

comments about the guidelii:v^^in-
cluding those made during;;^$^rings
before the House Judici»yCommit-
tee's Subcommittee on Criminal Jus-
tice (see The Third Branch, Sept. 1987,
at 1). Opponents contended that the
courts would be fully prepared to im-
plement the guidelines on Nov. 1 and
that no delay was necessary.

The bills in the House and Senate to
delay the effective date also would
clarify that the guidelines do not ap-
ply to offenses committed before the
effective date and would create a pro-
cedure for expedited judicial consid-
eration of any constitutional challenge
to the guidelines. They provide that
actions challenging the constitu-
tionality of the guidelines would be
commenced in the District Court for
the District of Columbia and heard by

See SENTENCING, page 2

cxA ^ "" J^mptcy Judge
^^ ^^;2^obert E. Ginsberg
Elected to FJC Board

Vacancies, Automation, Certification of State
Law Issues Discussed by Chief Judge Holloway

Chief ]udge William /. Holloway, /r.
(Wth Cir.), a native of Oklahoma, is a
graduate of the Universiti/ of Oklahoma
and Harvard Laiv School. During World
V^ar II, he served in the U.S. Army and
attained the rank of first lieutenant. He
entered on duty as a circuit judge in 1968
and became chief judge in 1984. Prior to
entering the federal court system, Judge
Holloway served in the Department of Jus-
tice's Civil Division in Washington and
^pent 16 years in private practice in
Oklahoma City.

The Tenth Circuit currently has five
vacancies— three in the district
courts, two in the court of appeals.
Given these constraints on your
judge power, is the crunch of cases
being felt?

Very much. Probably the most crit-
ical situation is in the district court in
the District of Colorado, which has

seven judgeships authorized and has
only five active district judges. So they
are waiting hopefully for judges to be
appointed. One nomination has been
submitted to the Senate, but there are
no hearings scheduled. One of the
vacancies has existed for over three
years, so that is critical. The District of
New Mexico is more fortunate. There,
See HOLLOWAY, page 6

Bankruptcy Judge Robert E.
Ginsberg (N.D. 111.) was elected to
the Board of the FJC at the fall meet-
ing of the Judi-
cial Confer-
ence, replacing

Chief Bank-
ruptcy Judge
Martin V. B.
Bostetter, Jr. (E.
D. Va.), whose
term expired.

Judge Gins-
berg, a native
of Cambridge,
Mass., was ap- Robert E. Ginsberg
pointed a U.S. bankruptcy judge on
June 7, 1985. He is a graduate of Brown
LJniversity and American LJniversity's
Washington College of Law, and he
holds an LL.M. degree from Harvard
Law School.

Judge Ginsberg was a trial attorney
with the U.S. Securities and Exchange
Commission, 1969-1972, and was
special counsel to the Commission,
1972-1973. From 1974 to 1985, he
taught at DePaul University College of
Law, in Chicago, in the areas of
debtor/creditor relations, corpora-
tions, and bankruptcy, and for a part
of that time was associate dean. Judge
Ginsberg became a full professor at
DePaul in 1981. He has also been a
lecturer in law at New England School
of Law and a visiting professor at the
University of Illinois. ■

INSIDE . . .

FJC to Undertake

Time Study p. 2

Judicial Conference of
U.S. Restructures
Committees p. 3

THETHiroBPANCH

FJC to Conduct Time Study of Caseload
Demands on District Judges and Magistrates

In November the Federal judicial
Center will launch the largest re-
search project it has ever under-
taken— a comprehensive study of
caseload demands on the time of dis-
trict court judges and magistrates.
The study, which will rely on the co-
operation of all district court judges
and magistrates, their staff, and per-
sonnel from clerks' offices, has been
initiated at the request of the Judicial
Conference Committee on Court Ad-
ministration. Findings will be used
both for creating up-to-date case
weights and for arriving at admin-
istrative and policy decisions affecting
the courts. The last study of judicial
time allocation was conducted eight
years ago.

A new approach will be used in this
research to avoid drawbacks of pre-
vious time studies. In the past, par-

ticipating judges kept meticulous rec-
ords of the time spent on every case
before them during a three-month
period. That approach helped to ac-
count for variations in the demands
arising from different types of cases,
but it imposed substantial record-
keeping burdens on the judges and
spanned only a portion of the life of
most cases. The new study minimizes
the burden on individual judges, and
it follows cases from filing to termina-
tion. Every case filed in a court during
a two-week period (different periods
for different courts) will be flagged
"time-study case" under a monitoring
procedure established by the clerk.
Judges and magistrates will then be
asked to record time expenditures un-
til disposition of the case.

See TIME STUDY, page 4

Legislation

The following are items under con-
sideration by Congress that are of in-
terest to the judiciary.

• Rep. Gerald D. Kleczka (D-Wis.)
proposed an amendment to the Con-
stitution that would permit Congress
to authorize bodies in the judicial
branch to remove judges for cause.
Rep. Kleczka stated that the impeach-
ment process is too time-consuming

theTHIEDbpanch

Published monthly by the Administrdtivc Of-
fice of the U.S. Courts and the Federal Judiii.il
Center. Inquiries or chanj^es of address should
be directed to 1520 II Street, N.W.,
Washington, DC 20005.

Co-editors

Alice L. O'Donnell, Director, Division of Inter-
Judicial Affairs and Information Services,
Hederal Judicial Center. Peter C. McCabe,
Assistant Director, Program Management,
Administrative Office of the US. C ourts

and causes a delay in the considera-
tion of "vital national issues." The
proposed amendment was intro-
duced as a joint resolution, H.R.J.
Res. 364, by Rep. Kleczka, Rep. Barn-
ey Frank (D-Mass.) and Rep. Bill
Frenzel (R-Minn.), and was referred to
the House Judiciary Committee.

• The House Judiciary Commit-
tee's Subcommittee on Courts, Civil
Liberties, and the Administrahon of
Justice held a hearing on H.R. 3152,
the Court Reform and Access to Jus-
tice Act, introduced by Rep. Robert W.
Kastenmeier (D-Wis.) (see The Third
Branch, Oct. 1987, at 1). The bill in-
cludes many provisions that have
been recommended by the Judicial
Conference. Those recommendations
are also contained in S. 1482, the Judi-
cial Branch Improvements Act of 1987
(see The Third Branch, Aug. 1987, at 5).
Although H.R. 3132 and S. 1482 over-
lap considerably, they are not
identical.

Among H.R. 3152's provisions are

abolishment of the Supreme Court's

See LEGISLATION, page 9

Siegel Named to Head
New AO Office

Karen K. Siegei has been appoint-
ed chief of the AO's new Office of the
Judicial Conference Secretariat. She
will be assisted by Marion Ott, for-
merly staff assistant to the Director
of the AO.

Ms. Siegel's primary duty will be
to ensure that the Judicial Con-
ference and all its committees re-
ceive proper support from the AO.
In that capacity, she will be the AO's
staff coordinator to the Conference
and will report directly to the Direc-
tor, who by law serves as secretary
to the Conference.

Ms. Siegel has been with the AO
for the last five and a half years. She
worked in the Office of Legislative
Affairs briefly before being named
special assistant to Deputy Director
James E. Macklin, Jr., in 1982. In
1987, she spent eight months as act-
ing chief of the AO's Office of Audit
and Review. Ms. Siegel has
provided staff support to the Con-
ference's Committee on Court Ad-
ministration and its Subcommittee
on Judicial Improvements, and has
assisted the Director in preparing
the report of the biannual Judicial
Conference sessions.

Ms. Siegel received her B.A. and
J.D. degrees from the University of
Miami. She worked for the Justice
Department for neady 10 years, as a
trial attorney, attorney-adviser, and
deputy legislative counsel in the Of-
fice of Legislative Affairs.

SENTENCING, from page 1

a three-judge court in accordanc*
with 28 U.S.C. § 2284. The bills als(
provide that such cases would be ex
pedited "to the greatest possible ex
tent" and that orders issued in sucl
cases would be reviewable by appea
directly to the Supreme Court.

Pursuant to a provision of the Sen
tencing Reform Act, the Comptrolle
General of the United States has trans
mitted to the House Judiciary an<
Government Operations Committee
a report on the Sentencing Commit
sion's guidelines. '

BULLETIN OF THE
FEDERAL COURTS

Judicial Conference of U.S. Restructures
Committees; Executive Comm.'s Duties Expanded

Calendar

The Judicial Conference of the Unit-
ed States has approved a plan to re-
organize its committee structure and
to expand the duties of its Executive
Committee. These and other recom-
mendations contained in the report of
the Committee to Study the Judicial
Conference, which had been appoint-
ed by the Chief Justice in December
1986, were adopted at the Con-
ference's meeting in September.

The committee reported its funda-
mental conclusion that the Con-
ference and its committees are sound
but that structural and procedural re-
visions were necessary to enable the
Conference to operate more expedi-
tiously, to enable the committee struc-
ture to deal more effectively with mat-
ters of budget and resource allocation,
md to improve communications
imong the Conference, Conference
rommittees, the courts, judges, sup-

porting personnel, and the Admin-
istrative Office.

The strengthened Executive Com-
mittee will provide the Conference
with the capability to implement its
policies between sessions. The Chief
Justice named the following seven
judges to the new Executive Commit-
tee: Chief Judge Wilfred Feinberg (2d
Cir.), chairman; Chief Judge Paul H.
Roney (11th Cir.); Chief Judge Levin
H. Campbell (1st Cir.); Chief Judge
Charles Clark (5th Cir.); Chief Judge
Aubrey E. Robinson, Jr. (D.D.C.);
Chief Judge John F. Nangle (E.D.
Mo.); and Chief Judge Robert F.
Peckham (N.D. Cal.).

In reorganizing committee mem-
bership, the Conference decided that
committee members who have served
six or more years would be asked to
resign, but may be reappointed. In
See COMMITTEES, page 5

Retirement Provisions for Judges and
Other Court System Personnel Explained

Several retirement systems are ap-
plicable to employees of the judiciary.
rhe following outlines some of the
:omplicated provisions of the
ystems.

Article III judges. There are several
najor differences between retirement
rom active service with election of
enior judge status under 28 U.S.C.
I 371(b) and retirement from office
inder § 371(a). Both actions provide
he individual with a lifetime annuity
nd free the judgeship for nomination
'Y the President. The following are
ome major distinctions between the
wo courses of action:

• A senior judge retains a valid
ommission and may be designated to
erform judicial duties. In contrast, a
Jdge who retires under § 371(a) for-
?its the legal authority to act as a
Jdge, but gains the freedom to pur-
ue other professional pursuits.

• A senior judge receives all
ostretirement increases in judicial

pay, whereas a judge retiring under
§ 371(a) does not.

• A senior judge who performs
substanhal services is entitled to re-
tain office space and supporting per-
sonnel whose salaries are paid from
government funds. A judge retiring
under § 371(a) is not.

Otherwise, both classes of retirees
receive similar benefits and annuities.
Both may continue to hold federal
health insurance and Federal Em-
ployees' Group Life Insurance
(FEGLI), and participate in open sea-
sons for each of these programs. All
retired judges also receive full credit
for deposits made to the Judicial Sur-
vivors' Annuity Fund during their
years of retirement. Although the an-
nuities paid to both types of retirees
are subject to federal income tax as
well as income taxes in most states,
they are not subject to PICA taxes. In
addition, the Department of Health
See RETIREMENT, page 9

Nov. 11 Workshop for Judges of the Fifth
Circuit

Nov. 15-21 Seminar for Newly Appoint-
ed District Judges

Nov. 18-20 Seminar for Bankruptcy
Judges

Nov. 19-20 Judicial Conference Adviso-
ry Committee on Criminal Rules

Nov 19-20 Judicial Conference Adviso-
ry Committee on Civil Rules

Trends in Asbestos Litigation
Published by FfC

Trends in Asbestos Litigation, by
Thomas E. Willging of the Center's
Research Division, is an examina-
tion of the methods the federal
courts have developed for dealing
with the burden of asbestos cases.
The report describes techniques that
have worked and some that have
not. Many of the lawyers and judges
cited report that asbestos cases are
no longer complex but have become
routine, yet the problems remain
acute because the number of filings
has increased so dramatically.

Because of the unique con-
vergence of several factors — the
widespread use of a highly toxic
product during an extended latency
period, the suppression of informa-
tion about its dangers, the clarity of
general causation and the lack of
clarity of causation-in-fact, and the
numbers and concentrations of
cases — there are no direct parallels
in superficially similar toxic tort liti-
gation. Because of these same fac-
tors, the author predicts that no
other toxic tort cases will follow the
case-filing pattern of asbestos cases.
He also reports the belief of many
lawyers in the field that the major
wave of asbestos cases is cresting
now, and that reduced use of as-
bestos in the 1970s should lead to
fewer filings in the future.

Copies of the report can be ob-
tained from Information Services,
1520 H St., N.W., Washington, DC.
Please send a self-addressed mail-
ing label, preferably franked (10
oz.). Do not send an envelope.

THE

BEANCH

Noteworthy

Ninth Circuit holds bankruptcy judges
lack statutory authority to issue civil con-
tempt orders. The Ninth Circuit Court of
Appeals has held that in giving bank-
ruptcy judges authority over core pro-
ceedings, Congress did not also give them
contempt power in those proceedings.
Plastiras v. Idell (In re Sequoia Auto Brokers,
Ltd.), 827 F.2d 1281 (9th Cir. 1987). Since
bankruptcy judges do not derive their
power from Article 111, they have jurisdic-
tion to exercise the contempt power only if
they have a statutory basis for that au-
thority. There is no express statutory au-
thority granting the contempt power to
bankruptcy judges. In the 1978 Act, Con-
gress impliedly granted the bankruptcy
court the power of civil contempt. Con-
gress's general jurisdictional grant to the
bankruptcy courts in the 1978 Act was
held unconstitutional by the Supreme
Court in Northern Pipeline in 1982. When
Congress amended the Act, it withdrew
its grant of contempt power. The United
States intervened in Plastiras to argue that
28 U.S.C. § 157 and 11 U.S.C. § 105 im-
pliedly confer the contempt power on
bankruptcy judges. Section 157 was de-
signed to segregate those "core" proceed-
ings over which a bankruptcy judge could
exercise plenary authority from "related"
proceedings that could constitutionally be

disposed of only by Article III judges. The
court rejected the United States's position
that the contempt order must be treated as
"core" because it is part of the underlying
cause. The court held that when Congress
repealed the jurisdictional sections with
the references to the bankruptcy court's
contempt power in response to Northern
Pipeline, Congress did not impliedly con-
fer the contempt power through other sec-
tions. Those sections do not contain any of
the limitations on the contempt power that
Congress would have spelled out had it
intended by those sections to confer the
contempt power, the court reasoned.

Ford Foundation funds dispute resolu-
tion research program. The Ford Founda-
tion will fund a $3 million research pro-
gram on dispute resolution. The program,
to be called the Fund for Research on Dis-
pute Resolution, will be administered by
the National Institute for Dispute Resolu-
tion. The fund will invite proposals from
researchers and will be governed by a
council chaired by Sanford M. Jaffe, the
director of the Center for Negotiation and
Conflict Resolution at Rutgers University.
Masters in Judicial Studies offered at
University of Nevada. For the second year
a degree program leading to a masters in
judicial studies is offered at the University
of Nevada, Reno, in conjunction with the
National Judicial College and the National
Council of Juvenile and Family Court
Judges. Candidates must be graduates of
See NOTEWORTHY, page 10

TIME STUDY, from page 2

On average, every judge will be
asked to deal with approximately 20 to
30 time-study cases, though experi-
ence indicates that only about half of
those cases will result in expenditure
of judge time. When completed, the
project will have gathered extensive
information on nearly 12,000 cases.

In addition to assistance from staff
of the district court clerks' offices, the
study's success will rely on help from
judges' and magistrates' staff. i3ecause
time-study cases will constitute only a
small proportion of cases active in a
court, staff can alert judicial officers
when a designated case is before them
and assist in recording time expen-
ditures. With the help of five district
courts, procedures have been de-

veloped and tested to minimize bur-
dens and maintain accurate records.
These courts report that the burden
on judicial officers is substantially less
than that in earlier studies and that the
burden on staff is minor.

The main benefit of the study is that
it will establish, with increased preci-
sion, case weights that take account of
variations in the burdens imposed by
different features of cases. These case
weights are important because they
are used in computing, for each dis-
trict, a weighted filings statistic that
figures prominently in the allocation
of new judgeships.

The study will also permit inves-
tigation of matters affecting the ad-
ministration of justice. For example,
no data on the amount of time that
judges spend on cases involving

Report of the Director
Released by AO

The Administrative Office has re-
leased the report of the director,
which summarizes the business of
the courts and the activities of the
AO for the 12-month period ending
June 30, 1987.

The report shows that bankruptcy
case filings rose more than 17 per-
cent during the 12-month period.
There were 473,014 nonbusiness
bankruptcy filings and 88,264 busi-
ness filings.

Criminal case filings over the
period rose 4 percent, to 43,292.
Prosecutions under the Drug Abuse
Prevention and Control Act rose 12
percent, to 8,869, and now account
for 21 percent of all criminal case
filings and approximately 30 per-
cent of all criminal defendants. As of
March 31, 1987, the Drug Aftercare
Program was serving 8,889 clients,
an increase of 30 percent over the
same period in 1986.

Prosecutions of fraud, drunk driv-
ing, and other traffic offenses rose
significantly. There were 146 homi-
cide cases, 1,215 bank robbery
cases, 1,305 income tax prosecu-
tions, and 1,632 criminal immigra-
tion cases brought.

The number of civil cases declined
6.2 percent, to 238,982. The decHne
was concentrated in cases in which
the United States was a party. Pris-
oner petitions increased by 3,551,
asbestos-related personal injury
and product liability suits by 2,311,
and foreclosure cases by 911 over
the previous year's figures.

Diversity of citizenship cases in-
creased 5 percent in 1987, to 67,071;
they now account for 28 percent of
all civil filings.

awards of attorneys' fees currently e;
ist, yet the matter has recently gene
ated great concern. Concerns ha\
also been expressed about the tirr
required by summary judgment m(
tions, the time spent by judges o
discovery issues, and the savings (
time resulting from case managi
ment. Questions about these an
other practices can be addressed wil
the data collected in the study.

BULLETIN OF THE
FEDERAL COURTS

COMMITTEES, from page 3

addition, judges will no longer be re-
quired to serve five years before be-
coming a member of the Conference.
The Conference also adjusted its
committee structure. The Chief Jus-
tice will make all committee appoint-
ments, and he will be assisted in this
task by an advisory committee. Addi-
tionally, each federal judge will be
asked to express his or her interest in
serving on a Conference committee.
Five Conference committees and their
subcommittees will be dissolved, and
seven new committees will be cre-
ated, including a Committee on the
Administrative Office, a Committee
on Court Security, and a Committee
on Space and Facilities. Every five
years each committee will recom-
mend either its abolishment or con-
tinuance to the Executive Committee.
The Conference also

• Expressed its support for a one-
year delay in the effective date of the
U.S. Sentencing Commission's sen-
tencing guidelines (see story on
House vote on guidelines, p. 1).

• Approved the recommendations
jf the Committee on Court Admin-
stration that the salary ceiling for
bankruptcy judges and magistrates be
i2 percent of a district judge's salary,
md that the salaries of circuit ex-
ecutives and of the deputy directors of
he AO and FJC be increased. A draft
)ill incorporating these recommenda-
ions will be sent to Congress.

• Approved revised position de-
scriptions for probation and pretrial
•ervices positions.

• Approved revisions to the
lualification standard for principal
ecretaries to federal judges, from
four years as a secretary in a federal

Personnel

Health Plan Open Season

An open season to enroll in or
change health insurance plans will
take place from Nov. 9 to Dec. 11,
the AO has announced.

Nominations

Dean Whipple, U.S. District Judge, W.D.

Mo., Sept. 14
Alfred M. Wolin, U.S. District Judge,

D.N.J., Sept. 14
Edward F. Harrington, U.S. District

Judge, D. Mass., Sept. 18
Stuart A. Summit, U.S. Circuit Judge, 2d

Cir., Sept. 23
Robert S. Gawthrop III, U.S. District

Judge, E.D. Pa., Sept. 30

Appointments

Robert F. Kelly, U.S. District Judge, E.D.

Pa., July 17
Larry J. McKinney, U.S. District Judge,

S.D. Ind., July22
Philip M. Pro, U.S. District Judge, D.

Nev, July 24
Robert H. Bell, U.S. District Judge, W.D.

Mich., Aug. 7
Steven A. Felsenthal, U.S. Bankruptcy

Judge, N.D. Tex., Aug. 24
William R. Greendyke, U.S. Bankruptcy

Judge, S.D. Tex., Sept. 1
Douglas O. Tice, Jr., U.S. Bankruptcy

Judge, E.D. Va., Sept. 3
Eugene R. Wedoff, U.S. Bankruptcy

Judge, N.D. 111., Sept. 16

court, three of which must be at the
JSP-10 level" to "one year of legal sec-
retarial experience at the JSP-10 or
equivalent level."

• Approved revisions to the
qualification standards for career law
clerks.

• Adopted recommendations, as
amended, of the Ad Fioc Committee
on Court Reporters, including requir-
ing court reporters to keep their finan-
cial, attendance, and transcript rec-
ords on standardized forms.

• Assigned the responsibility for
oversight of court automation to the
new Committee on Judicial
Improvements.

• Determined not to object to the
creation of an Article I Claims Court
outside the judicial branch.

• Supported enactment, with
amendments, of the Court-Annexed
Arbitration Act of 1987 (H.R. 2127,
100th Congress).

Joyce Bihary, U.S. Bankruptcy Judge,

N.D. Ga., Sept. 17
John C. Minahan, Jr., U.S. Bankruptcy

Judge, D. Neb., Sept. 17
John C. Cook, U.S. Bankruptcy Judge,

E.D. Tenn., Sept. 18
Erwin I. Katz, U.S. Bankruptcy Judge,

N.D. 111., Sept. 25
Wm. Thurmond Bishop, U.S. Bankruptcy

Judge, D.S.C., Oct. 9

Elevation

Barbara J. Rothstein, Chief Judge, W.D.
Wash., Oct. 1

Senior Status

Irving R. Kaufman, U.S. Circuit Judge, 2d

Cir., July 1
John T. Elfvin, U.S. District Judge,

W.D.N.Y., July 1
Joseph T. Sneed, U.S. Circuit Judge, 9th

Cir., July 21
Joseph H. Young, U.S. District Judge, D.

Md., Aug. 1
Walter T. McGovern, U.S. District Judge,

W.D. Wash., Oct. 1

Death

John E Ray, Jr., U.S. Bankruptcy Judge,
N.D. Ohio, Oct. 1

Appointment Date Correction

James H. Alesia, U.S. District Judge, N.D.
III., June 24

• Supported enactment, with
amendments, of the Federal Courts
Study Act (S. 951, H.R. 1929, and
H.R. 3227, 100th Congress).

• Recommended that Congress
amend 28 U.S.C. § 1292(a)(1), relating
to interlocutory appeals.

• Recommended that Congress
amend 28 U.S.C. § 1391(c), relating to
corporate venue.

• Reaffirmed its March 1987 recom-
mendation that Congress promptly
take steps to narrow significantly the
civil RICO provisions in 18 U.S.C
§ 1964(c).

• Approved a resolution noting
with sadness the death of Wade H.
McCree, Jr., formerly a judge on the
Sixth Circuit Court of Appeals and a
member of the first Board of the FJC.

• Made a number of other recom-
mendations pertaining to various per-
sonnel, committee, and legislative
matters. ■

THE

Dbfanch

HOLLOWAY, from page 1

• k

a replacement for Senior Judge
Howard Bratton, a former FJC board
member, has been nominated and a
hearing has been held.

On the court of appeals, we are
waiting. One of our vacancies is over
two and a half years old; the other one
is six months old. One nomination
has been made but no hearings are
set. The problem is serious and causes
long-range impacts. We had five va-
cancies in early 1985 with only five
active circuit judges for a court of ten
authorized judgeships. You can imag-
ine the desperation that we had then
in trying to form panels. You build up
a backlog and you have to work and
work to get that out. And our backlog
is unfortunate— we regret it, but 1
have no apology. Our judges are
working strenuously.

It was shocking to Chief Justice Bur-
ger when he inquired in March of 1985
at the Judicial Conference how many
vacancies different courts had and I
said, "five, half our full complement."
And I know he and the other con-
ference members were astounded.
But, the other circuits have been very
kind to try to help us.

How many staff attorneys does
your circuit have?

We have 10. As you may know, the
formula generally is based on a ratio of
one staff attorney to each active judge.
However, that does not mean that the
staff attorneys are assigned to individ-
ual judges. They are not. They are a
unit working for the court under the
direction of our fine Senior Staff
Counsel, Jack Kleinheksel, and our
Supervising Staff Attorney, Betty
Page. They and the other eight do a
very important job for us. 1 think their
most important and helpful contribu-
tion at this time is their intense work
on our summary dispositions.

in our court, as in many courts,
after an appeal is noticed, the appeals
expediters, Kathleen Clifford and
Ellen Rich, who are deputy clerks in
the clerk's office, single out ca.ses that
look as though they might be candi-

dates for summary disposition be-
cause of a jurisdictional defect or be-
cause the case is not a substantial one
due to controlling Supreme Court
precedent or Tenth Circuit precedent
which makes the claim very unsub-
stantial. Those appeals are then re-
ferred to the staff attorneys. Memo-
randum briefs are ordered in quickly
from both sides in typewritten form.

William /. HoUoway, jr.

and the staff attorneys work from
those briefs and the records. They
study those intensely and recom-
mend to us those which they think
can be summarily disposed of. They
prepare two important documents for
us — a dispositional memorandum
giving an outline in detail of the rec-
ord and their legal research, and a
proposed order and judgment. In
1986 there were 464 cases submitted
to panels by this process and 434 were
decided by these two- or three-page
orders and judgments.

These summary dispositions are
not handled just in the mail and
quickly and with any lack of con-
centration. The records and these
memorandum briefs are sent out to
the panel of judges in advance some
two or three weeks before they come
to Denver. In Denver they confer with
the staff attorney who presented that
case, and they direct the staff attorney
what to do. If any one judge decides

the case is substantial, he can blow the
whistle and put it back on track for full
briefing and argument; or the panel
may decide they want to direct the
staff attorney to make some revisions
in the proposed order. He does it
through the word processor, brings it
back in a few hours, they adopt it,
perhaps, and they are ready to issue.
At these conference terms, which are
every other month, they are dispos-
ing of 80 to 90 cases each term, each of
these panels of three judges.

You use the word unsubstantial.
Are you using it in the same sense
that we use frivolous?

I somewhat dislike using the term
frivolous because I think it might be
deemed a derogatory term by the liti
gants and I shy away from it. Mort
often I say unsubstantial and I favoi
that terminology. I realize frivolous i<
in the statutes and rules, but I prefei
not to use it. These are people's cases
and I don't like to have them think w*
treat them as frivolous.

The Tenth Circuit is the only circui
to have its own print shop. Was that ii
place when you became chief?

Yes. It had been in place for a lonj

time. I've been on the court almost 1

years, and it was there before m

time. Chief Judge Orie Phillips am

Chief Judge Alfred Murrah both k

vored it very strongly. We have alway

felt that it is a very substantial savin

to the government, and Dewey Hei<

ing, chief of the Financial Manage

ment Division at the Administrativ

Office, has confirmed that. We hav

Xerox 9500 equipment. We produc

all of the opinions that are filed by tli

court. Each judge who authors a

opinion sends his opinion to the clei

with directions to lock it in the vau

where it is held for security; the

when the concurrences in the case ai

received we inform the clerk to file tl

opinion. Within one hour an opinic

of 20 pages can be reproduced wii

the 300 copies we need, and they ce

be filed that day and distributed. V

find it rapid, efficient, and very ec

nomical for the government. Last ye

we filed and reproduced them th

BULLETIN OF THE /rtTK
FEDERAL COURTS ^i^

way, some 368 opinions, 318 orders
and judgments — up to 3, 4, even 10
pages; and about 9,400 copies of a
new version of our rules of the court of
appeals. I know others differ, but from
our standpoint I see no reason for the
cost of a printing contract.

Colorado and Oklahoma have been
economically depressed in recent
years. How has this been reflected in
the Tenth Circuit's bankruptcy
filings?

They have risen dramatically. Yes-
terday the announcement was made
that the bank at Mustang, Oklahoma,
had failed the day before, which was
the sixty-third bank failure in
Oklahoma since the Penn Square
Bank failure in July 1982. This gives
you a perspective on the extent of the
economic conditions in Oklahoma
that we are suffering. The First Na-
tional Bank of Oklahoma City and the
First National Bank at Enid are two of
the victims, and there is a large in-
crease in the filings in bankruptcy in
the Western District of Oklahoma. For
example, from just July 1986 through
June 30, 1987, 9,315 bankruptcy cases
were filed in the Western District of
Oklahoma. Of course that does not, in
any way, tell it all. Included in that
number were 257 Chapter 11 reorga-
nization cases, which involve extraor-
dinary work, 8,374 were Chapter 7
liquidation cases, and then smaller
numbers of the others.

How many of those cases involved
the oil business?

Quite a large amount. And of
course agricultural cases under the
Chapter 12 provisions, the new provi-
sions that Congressman Synar and
others sponsored. In Colorado just
from January 1, 1986, to December 31,
1986. they had total bankruptcy fil-
ings of 12,760 cases and there were
445 Chapter lis. Other courts are
helping us. Chief Judge Lively told
me that he signed an order to allow a
bankruptcy judge from the Sixth Cir-
cuit to come to help us. Chief Judge
Lay and his circuit have helped us. We
have recalled retired bankruptcy
judges to help.

Is the oil industry in your circuit in
a very bad situation?

Oh, yes; it is a severe situation. Of
course, the West Texas crude figure is
the index we watch, and the price is
not favorable yet. It's been a littie bet-
ter than it was when it was down to
$13 or a little less. Now it is up; I
would say the oil industry is showing
signs of some rebirth, but it will de-
pend strictiy on the reasonableness of
the importation that is made of oil. If
there can be a reasonable limit on that

"I somewhat dislike using
the term frivolous because
I think it might be deem-
ed a derogatory term by
the litigants and I shy
away from it. . . . These
are people's cases, and I
don't like to have them
think we treat them as
frivolous."

without harming consumer interests
and we can have increased production
and exploration domestically, then we
can have a rebirth of the Oklahoma,
Colorado, and Kansas oil industries.
It hit all the states in the Tenth Circuit
heavily — including New Mexico,
Utah, and Wyoming.

The supply companies have had
enormous bankruptcy filings. The
companies owning the drilling rigs
have taken heavy losses. The pro-
ducers— the large and small pro-
ducers— have suffered terrible losses
because of the depressed price of
crude oil. And, it is sort of a double
whammy for the farmers — they are
affected because not only are we suf-
fering an agricultural depression, but
the farmers in large areas depend on
royalty income and their royalties are
way down because of the decrease in
production of oil and gas.

They own the mineral rights under
their farm lands and when they make
an oil and gas lease they are entitied

to, and have in the lease generally, a
one-eighth royalty. And so when the
royalty income of the farmer is de-
pressed because the gas and oil takes
are so much less, the income off of
them is less. The farmers suffer not
only because their agricultural income
is down but because their supplemen-
tary royalty income is reduced.

What about your automation
activity?

Well, we are doing a great deal. We
were a pilot circuit and are now com-
pletely on the AIMS system for the
entry of all cases filed in the Tenth
Circuit Court of Appeals. We did that
over a year ago, so all of the data is
able to be accessed by the computer. It
is stored in the computer, accessed
from the computer, and maintained
there for the benefit of the judges, and
for the important usage of the Clerk's
Office. Our Judge John Moore is able
to access the information from his
Denver chambers for the use of him-
self and his staff. He can, through au-
tomation, pull up the style of the case,
the names of counsel involved, the
controlling issues that are sum-
marized under an indexing system,
and other data that the judge may
need.

In the district courts, the clerks' of-
fices are presently using the Personal
Computer (PC AT equipment) for a
number of programs including finan-
cial applications and case status infor-
mation. The district courts are also
using these PCs for administrative
programs and for personnel and fur-
niture. William King is developing ad-
ditional applications for the district
courts' use in the near future. In the
district of Colorado their Central Vio-
lations Bureau is using completely au-
tomated records on the violations.
The district of New Mexico has the so-
called four-phase system allowing
them to keep track of potential jurors
for service, and they generate also by
computer the vouchers and compute
the pay due and issue checks. The
district of New Mexico also keeps
track of cases entered for each judge
and creates indices of the parties in-
See HOLLOWAY, page 8

THE

BBANCH

51
i

HOLLOWAY, from page 7

volved in their cases. They run
Speedy Trial Act reports through their
computers.

The bankruptcy courts, I think, are
one of the most critically important
areas for the use of automation be-
cause of the enormous volume of
work. The bankruptcy courts in the
Tenth Circuit are experiencing a large

tant device that has not been appreci-
ated fully. As you may know, the first
certification statute was adopted in
1945 in Florida. In Clay v. Sun Insur-
ance Co. the Supreme Court in 1960
commended the rare foresight of the
Florida legislature in adopting a stat-
ute permitting reference of questions
to the Supreme Court of Florida from
the federal courts. Since then, 24
states and the Commonwealth of

"We are now completely on the AIMS system for the entry
of all cases filed in the Tenth Circuit Court of Appeals."

growth in filings, as I said, and they
are dealing with this by utilizing the
personal computers in providing sta-
tistical information to the Admin-
istrative Office. The district in Wyo-
ming is the only Bankruptcy Court
that I believe now uses a modified so-
called NIBS BUMS system for full
docketing.

Are there any innovations in bank-
ruptcy case management in your
circuit?

Well, one thing that is being exam-
ined by us again — we have consid-
ered it before and didn't adopt it — are
the appellate bankruptcy panels.
They are in use for the Ninth Circuit,
and I understand that Chief Judge
Browning feels that they are most
useful. These are special panels of
bankruptcy judges where parties
have the option to either carry their
appeal to the federal district courts
and then up to the court of appeals or
through bankruptcy appeals panels.
That is a procedure we are going to
reconsider very shortly.

What has been your circuit's experi-
ence with certification of state law
questions to the highest courts of the
states?

This is one of my very strong inter-
ests. It is not, i will have to admit, a
mechanism that is a large-volume so-
lution to problems of the appellate
courts, but I think it is a very impor-

Puerto Rico have adopted either stat-
utes or rules. Every state in the Tenth
Circuit has authorization for their Su-
preme Court to answer. Justice Mar-
ian Opala of our Oklahoma Supreme
Court tells me that the Oklahoma Su-
preme Court deems it an honor to be
asked to respond to a question.

But they don't all feel that way?

That's true, they may not. Secondly,

arose in the federal tax case field. We
certified a question under Kansas pro-
bate law, on which the case actually
turned, although it was a federal tax
refund suit. We got a decision from
the Kansas Supreme Court and
promptly were able to dispose of the
case ourselves without guessing on
state law. But, I think it is most impor-
tant in cases such as one involving a
question we certified to the Supreme
Court of Wyoming. That case in-
volved the construction and applica-
tion of the state securities laws, the
question of whether an oil and gas
investment of a certain type was a se-
curity within the meaning of that stat-
ute. Why should the federal court try
to decide basic questions of state pol-
icy of such importance? We certified
the question to the Supreme Court of
Wyoming in that case over the objec-
tion of both sides. But we think we
handled this right.

What objections were raised?

Of course, one side had already
won. They didn't want it to be re-
heard. I think the other side thought

"The bankruptcy courts ... are one of the most critically
important areas for the use of automation . . . ."

Justice Opala says they give certified
questions priority. Third, they have
never declined to answer a certified
question, which, of course, is their
right and within their discrehon. The
point is that there is a failure, I feel, to
realize the usefulness of this pro-
cedure. This not only is a mechanism
available in diversity cases but in
Federal Tort Claims Act cases. That
statute incorporates state law, and it is
very often a controlling question. We
had one about a statute of limitations
under a new statute relating to medi-
cal malpractice in Colorado. It was ter-
ribly important to get a decision. A
question of state law in Kansas also

perhaps there would be a delay. The)
feel there is delay. I don't. I think there
is not delay because the state courts dc
give priority to the cases. They answei
the question and we proceed. In i
matter of months we will have the
response from the state court, no
only for us but for all— for all tht
federal district judges in Wyoming
and for all the panels of the court o
appeals that may have similar ques
tions. Justice Douglas concluded ir
the Lehman Brothers case that certifica
tion in the long run saves time; that i
is a judicial economy; and that it help:
build a cooperative judicia
federalism. '

BULLETIN OF THE /rh,
FEDERAL COURTS TT^

lETIREMENT, from page 3

ind Human Services recently re-
'crsed an earlier position and now
lolds that senior judges are entitled to
irimary health insurance coverage
roni Medicare.

One variation on the judicial au-
hority of a senior judge arises in con-
lection with in banc proceedings,
lection 46(c) of title 28 provides that a
ourt in banc "shall consist of all cir-
uit judges in regular active service
. . except that any senior circuit
idge . . . shall be eligible to partici-
ate ... as a member of an in banc
Durt reviewing a decision of a panel
f which such judge was a member."

Magistrates and bankruptcy judg-
s. Bankruptcy judges and magis-
ates who were appointed before Jan.
. 1984, are covered by the Civil Serv-
e Retirement System (CSRS); those
ppointed after that date, with some
(ceptions, are covered by the Federal
mployees Retirement System
•ERS), which is applicable to federal
Tiployees generally. The Magistrates
etirement Parity Act of 1987, Pub. L.
o. 100-53, amended Chapter 83 of 5
.B.C. to include magistrates and
mkruptcy judges in the category of
nployees who receive a CSRS an-
Jity computed at an enhanced rate

2.5 percent of average annual pay

for the years of creditable service. This
credit is given for service as a referee
in bankruptcy, a bankruptcy judge, a
U.S. magistrate, or a U.S. commis-
sioner, and up to five years of military
service. No additional contributions
are required for this retroactive an-
nuity benefit, but future contribu-
tions will be at the rate of 8 percent of
basic pay. (Bankruptcy judges have
been paying this 8 percent rate since
Jan. 1, 1984.)

Under the Act, magistrates and
bankruptcy judges under CSRS now
have the same retirement options.
They may retire at age 62 after com-
pleting 5 years of civilian service or at
age 60 after completing 10 years of
service as magistrate or bankruptcy
judge. Under 28 U.S.C. § 8336, they
may also be entitled to an immediate
annuity after becoming 55 years of age
with 30 years of service. The Act ap-
plies to all magistrates and bank-
ruptcy judges covered by CSRS who
were holding office on Oct. 1, 1987.
Magistrates and bankruptcy judges
appointed after that date will receive
these benefits if they are covered by
CSRS. The Act does not apply to mag-
istrates or bankruptcy judges who are
covered mandatorily by the new FERS
or to those who elected to withdraw
completely from CSRS.

Probation and pretrial services of-
ficers. The Office of Personnel Man-
agement (OPM) has issued regula-
tions concerning the treatment of law
enforcement officers under FERS.
Law enforcement officers pay larger
contributions to the retirement sys-
tem than other employees and receive
a more generous annuity, but are sub-
ject to a maximum age for entry on
duty as well as a mandatory retire-
ment age. In addition, the agency
contribution for law enforcement of-
ficers is larger than its contributions
for other employees. The OPM regu-
lations delegate to the Director of the
AO the authority to certify which
positions in the judicial branch are to
be treated as law enforcement officers
under FERS. In essence, the Director
has designated the positions covered
as law enforcement positions under
CSRS as also covered as law enforce-
ment officer positions under FERS.
These positions include probation
and pretrial services officers and pro-
bation officer assistants.

Other judicial employees. Federal
employees who entered on duty on or
after Jan. 1, 1984, including bank-
ruptcy judges, magistrates, judges of
the U.S. Claims Court, and all other

See RETIREMENT, page 10

BGISLATION, from page 2

andatory jurisdiction; abolishment
the Temporary Emergency Court of
ppeals; improvement of the admin-
Tative operation of the jury system
' allowing judges to authorize the
?rk of court to grant temporary ex-
ises to jurors; changes in the
lemaking procedures for federal
urt rules; and statutory authoriza-
>n for experimental court-annexed
bitration in 13 districts, with an ad-
tional 10 districts to be approved by
e Judicial Conference. The bill also
ntains provisions that have not been
dressed by the Judicial Conference,
dge Elmo Hunter (E.D. Mo.) testi-
d on H.R. 3152 on behalf of the

Judicial Conference with respect to
the provisions that the Conference
recommended.

ABA President Robert MacCrate
also testified concerning H.R. 3152.

• The House Subcommittee on
Criminal Justice met in executive ses-
sion to continue to discuss the inquiry
into the possible impeachment of
Judge Alcee L. Hastings (S.D. Fla.).
The full House voted to release the
report on Judge Hastings prepared by
an investigating committee of five
federal judges and submitted to the
11th Circuit Judicial Council. The Ju-
dicial Council certified to the Judicial
Conference of the United States that it
had determined that Judge Hastings
had engaged in conduct that might
constitute one or more grounds for

impeachment, and the Judicial Con-
ference certified to the House its de-
termination that consideration of im-
peachment may be warranted. The
Judicial Conference transmitted the
report of the investigating committee
and other materials to the Speaker of
the House on Mar. 17, 1987. 28 U.S.C.
§ 372(c)(14)(A) authorizes the House
to release material "which is believed
necessary to an impeachment inves-
tigation or trial of a judge. " Under the
House Resolution, the report of the
investigating committee is to be made
public, and all other papers, docu-
ments, and records of proceedings
transmitted to the House in the matter
are to be released "to the extent or-
dered by the Committee on the Judici-
ary." ■

THETHiroBFANCH

RETIREMENT, from page 9

judicial employees (but not Article III
judges), have been covered by FERS
since Jan. 1, 1987, unless they had five
years of creditable civilian service on
Dec. 31, 1986. Employees not man-

Position Available

Clerk, U.S. Bankruptcy Court,
S.D. III. Salary $53,820-69,976. Re-
sponsible for managing the admin-
istrative activities of the court. Re-
quires minimum 10 years' pro-
gressively responsible admin-
istrative experience in public service
or business, at least 3 years in a posi-
tion of substantial management re-
sponsibility College education may
be substituted for up to 3 years of
general experience, law degree may
be substituted for 2 additional years.
Submit application by Nov. 16, 1987,
to Thomas M. Crain, Clerk, U.S.
Bankruptcy Court, 750 Missouri
Ave., 1st Floor, East St. Louis, IL
62201.

EQUAL OPPORTUNITY
EMPLOYER

datorily covered under FERS have un-
til Dec. 31, 1987, to elect to participate
in FERS. Information about FERS has
been sent to all employees to assist
them in making this decision.

The annuity under FERS (1 percent
of annual salary times years of serv-
ice) is supplemented by Social Se-
curity benefits and the voluntary
401(k)-type thrift savings plan. An
employee may contribute up to 10
percent of salary to the plan, subject
to IRS Umitations. The government
automatically contributes 1 percent of
salary annually and matches em-
ployee contributions up to a total of 5
percent of salary annually.

Pending legislation. As endorsed
by the Judicial Conference, S. 1482,
the Judicial Branch Improvements Act
of 1987, would amend 28 U.S. C. § 371
to permit senior judges and judges
retiring under § 371(a) to receive mili-
tary retired or retainer pay they would
be enhtled to on the basis of regular or
reserve military service.

With the endorsement of the Judi-
cial Conference, bills have been intro-
duced in each house of Congress that
would provide a retirement annuity
for all bankruptcy judges and full-
time magistrates, equal to the full sal-
ary of office after 14 years of service.

payable at age 65. The bills are H.R
2586 and S. 1630, the Retirement am
Survivor Annuities for Bankrutpc;
Judges and Magistrates Act of 1987
The right to an annuity would ves
after 8 years of service. Annuities fo
retirees with 8-14 years of servic
would be computed proportionally b
dividing the years of service by 14.
Rep. Sonny Montgomery (D-Miss
has introduced H.R. 3358, a bill t
amend 28 U.S. C. § 376 to allow cos
of-living adjustments in judicial sui
vivors annuities and to increase exis
ing annuities by 10 percent. I

BULUTIN OF THE FEDERAL COURTS

theTHIHDbranch

Vol.19 No. 11 November 1987

The Federal Judicial Center

Dolley Madison House
1520 H Street, N.W.
Washington, DC 20005

Official Business

NOTEWORTHY, from page 4

an ABA-accredited law school and mu
be in active service; course work must 1
completed in two six-week summer se
sions (though this work may also 1
spread over a sbc-year period in two-
four-week segments); and a thesis is i
quired. Thirty-nine candidates from nir
teen states are already enrolled for tl
1988 term.

Through a grant from the State Justi
Institute, 60 scholarships of up to $1,0
per judge will be awarded for the 19
calendar year For further information cc
tact Neal Ferguson, MJS Program, 335 C
lege Inn, University of Nevada, Reno, ^
vada 89557.

First
Class
Mail

Postage an
fees paid
United Stat
Courts

U.S. GOVERNMENT PRINTING OIMCF 1987 181 221 60008

^'-.^.l

BULLETIN OF THE FEDERAL COURTS

tec,^

theH

BRANCH

VOLUME 19
NUMBER 12
DECEMBER, 1

A Holiday Message from the Chief Justice

I send holiday greetings to my fel-
ow judges and all of the Federal Judi-
ial family who have worked loyally
nd ably in the administration of jus-
ice this past year. After a little more
han a year as Chief
ustice, I have a re-
lewed appreciation
if the need to work
ogether to maintain
he efficiency and re-
ponsiveness of the
Third Branch." In
bis— the 200th year
if our Constitu-
lon — we should re-
nind ourselves that
qual justice under
jw is an ideal to-
wards which all of
ur efforts must be
ontinually directed.

No individual exemplified the com-
nitment to justice under law better
ban Justice Lewis F. Powell, who re-
ired from the Court in June of this

^^^^.^J^^^^y^^^^

year. His fifteen years of dis-
tinguished service as Associate Justice
capped a truly distinguished career as
a lawyer, private citizen and public
servant. His colleagues will miss the
presence of this
wise, reflective and
gentle man; we
wish Lewis Powell
and his wife, Jo, a
retirement blessed
with good health.

A special note of
appreciation is due
to retired Chief Jus-
tice Burger for his
distinguished serv-
ice as head of the Bi-
centennial Commis-
sion. The national
observance of the
200th year of our
Constitution has been a splendid cele-
bration of what British historian J. R.
Pole described as "the gift of
government."

See REHNQUIST, page 8

longress Weighs Enhanced Retirement Coverage
'or Bankruptcy Judges and Magistrates

The following measures are among
hose in the House and Senate that are
•f interest to the judiciary.

Retirement and survivor annuities
or bankruptcy judges and magis-
rates. Subcommittees of both the^
4ouse and Senate Judiciary Commit-
ees held hearings on bills that would
Tovide for enhanced retirement and
urvivor annuities for bankruptcy
udges and magistrates. The House
udiciary Committee's Subcommittee
'H Courts, Civil Liberties and the Ad-
ministration of Justice, chaired by
'ep. Robert W. Kastenmeier (D-Wis.)
leld a hearing on H.R. 2586, the Re-
irement and Survivor Annuities for
bankruptcy Judges and Magistrates
^ct of 1987. The Senate Judiciary
-ommittee's Subcommittee

Courts and Administrative Practice
held a hearing on S. 1630.

Judge Morey Sear (E.D. La.), chair-
man of the Judicial Conference's Com-
"^mittee on the Administration of the
Bankruptcy System, and Judge Otto
R. Skopil, Jr. (9th Cir.), chairman of
the Conference's Committee on the
Administration of the Federal Magis-
trates System, testified in support of
the bills. Judge Robert R. Merhige, Jr.
(E.D. Va.), a member of the Con-
ference's Committee on the Admin-
istration of the Bankruptcy System,
also testified in support of the bills.

The bills provide that bankruptcy

judges and magistrates will receive an

annuity payable at the rate of '/i4 of

salary at the time of retirement for

See LEGISLATION, page 4

\S^

..^

Congress Pass0'^
Amendmentis 1^
Sentencing Aci^^ ^.^,

Congress has passed S. l^T^pks
amended, the "SententsJitig^^'Act of
1987," amending the-^rifencing Re-
form Act to make clear that the
guidelines apply only to conduct com-
mitted on or after Nov. 1. S. 1822 also
originally contained a title modifying
criminal fine provisions. The House
has passed a criminal fine improve-
ments bin, H.R. 3483 (see "Criminal
fines," p. 5.) The Senate had passed a
similar criminal fines measure in an
earlier version of S. 1822, but the
House felt it would be better for all
sentencing amendments to be in one
bill and all fine provisions in a sepa-
rate bill.

S. 1822 as passed clarifies the stan-
dard for departure from the sentenc-
ing guidelines under 18 U.S.C.
§ 3553(b), stating that "in determining
whether a circumstance was ade-
quately taken into consideration [by
the Sentencing Commission], the
court shall consider only the sentenc-
ing guidelines, policy statements, and
official commentary of the Sentencing
Commission."

Other provisions of the Sentencing
Act of 1987 concern review of a sen-
tence for which there is no applicable
guideline; supervised release; the de-
termination of guideline sentencing
for prisoners transferred pursuant to
treaty from foreign countries; the
elimination of the requirement for
See SENTENCING, page 2

f^^''

Inside . . .

University of Virginia
Judicial Degree Program . . .

. p. 3

Home Confinement Study .

. p. 4

Hearing on AIDS and
Prisoners/Parolees

. p. 7

iheTBBRDbranch

SENTENCING, from page 1
petty offense guidelines; and the au-
thority of the director of the AO to
contract for psychiatric aftercare for
probationers and parolees.

Some of the provisions contained in
S. 1822 had been requested by wit-
nesses at a Senate Judiciary Commit-
tee hearing held shortly before the
Nov. 1 effective date. At that hearing,
the committee heard testimony from

Guidelines Education. Also appear-
ing before the committee were six of
the seven members of the Sentencing
Commission, Assistant Attorney
General William Weld, and represent-
atives of the ABA and the Federal Pro-
bation Officers Association.

judges Becker and Mazzone ex-
pressed concern that, given the short
time remaining before the guidelines
took effect, there would be problems

judges Gerald B. Tjoflat (Uth dr.), Edward R. Becker (3d Cir.), and A. David Mazzone (D. Mass.)
(left to right) testify before the Senate liidiciary Committee hearing on the sentencing gutdelmes.

Judges Edward R. Becker (3d Cir.),
A. David Mazzone (D. Mass.), and
Gerald B. Tjoflat (11th Cir.). Judges
Becker and Mazzone represented the
Judicial Conference. Judges Tjoflat
and Mazzone are members of the Ju-
dicial Conference Ad Hoc Committee
on Sentencing Guidelines, and Judge
Mazzone is chairman and Judges
Becker and Tjoflat are members of the
FJC Committee on Sentencing

HJlUnsW TMl fUrtHAl tOUBIS

theTHIRDbranch

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()0S.

Co-editors

Alice L. O'Donnell, Director, Division of Inter-
Judicial Affairs and Information Services,
Federal Judicial Center, f'eter C. McCabe,
Assistant Director, Program Management,
Administrative Office of the US. C ourts.

in conducting adequate training. Al-
though the judicial branch was doing
its best to prepare all judicial person-
nel for guideline sentencing, the
judges said, "we can expect signifi-
cant uncertainty." The judges were
also concerned about funds for tran-
scripts of sentencing hearings, prepa-
ration of local rules, and the impact of
guideline sentencing on appellate
courts. Accordingly, the judges asked
on behalf of the Executive Committee
of the Judicial Conference for a delay
of three months "to give these
guidelines the best possible chance of
becoming a milestone in sentencing
reform." They also urged that Con-
gress clarify the question of the
guidelines' applicability only to con-
duct committed on or after the Nov. 1
effective date.

judiciary Committee Chairman
Sen. Joseph R. Biden, Jr. (D-Del.) is-
sued a statement saying that he was
"eager for the guidelines to go into

Training on Guidelines

Since late October, federal judges,
probation officers, magistrates,
federal defenders, and others have
been attending guideline sentenc-
ing orientation programs held at the
local level and administered pri-
marily by the district court proba-
tion offices. The Federal Judicial
Center, in cooperation with the U.S.
Sentencing Commission, spon-
sored three regional seminars in Oc-
tober to prepare at least one proba-
tion officer and one district judge
from each court to provide others in
their court with an initial orientation
to the guidelines.

The Center adopted this basic ap-
proach, first announced last May, in
order to provide the courts with
maximum flexibility in meeting
their guideline training needs, and
because the approach could be can-
celled quickly if Congress enacted a
last-minute delay in the guidelines'
effective date.

effect as soon as possible."

Assistant Attorney General Welc
expressed the Department of Justice';
"strong support" for the guideline:
and opposed any delay in their effec
tive date. He presented a draft bill
jointly worked out among the staffs o
the AO (pursuant to amendments ap
proved by the Judicial Conference]
the Sentencing Commission, and th^
Justice Department, which served a
the basis for S. 1822.

Tommaso D. Rendino, a U.S. pro
bation officer in the District of Ver
mont and president of the Federa
Probation Officers Association, state(
that "the guidelines mean more wor
for us, both quantitatively am
qualitatively," because "the presen
tence investigation phase of the proc
ess will take more hours to complet
and the level of responsibility places
on probation officers will be in
creased." Describing the probatio
service as "the key element in the ne\
guideline sentencing," he pointed t
the importance of the intensive trair
ing already under way. '

BULLETIN OF THE
FEDERAL COURTS

1987 Circuit Judicial Conferences Focus on
Bicentennial of United States Constitution

Bicentennial themes were the focus
of the 1987 circuit judicial con-
ferences.

The First Circuit Judicial Con-
ference was held in Danvers, Mass. A
panel including Judge Pierre N. Leval
(S.D.N.Y.), a private practitioner, and
a journalist discussed "The Press, the
Bar, and the Courts," and a panel
moderated by Judge Rya W. Zobel
(D. Mass.) and including Chief Judge
)ack B. Weinstein (E.D.N.Y.) dis-
cussed the use of experts in civil and
criminal cases. Solicitor General
Charles Fried spoke, and Judge John
C. Godbold, director of the FJC, gave
the luncheon address. Judges
Stephen G. Breyer (1st Cir.) and A.
David Mazzone (D. Mass.) discussed
the sentencing guidelines.

The annual Judicial Conference of
the Second Circuit met in Hershey,
Pa. Chief Judge Wilfred Feinberg re-
ported on the work of the circuit, and
[ustice Thurgood Marshall, the circuit
lustice, spoke. The conference in-
:luded panel presentations on first
amendment topics and workshops on
several issues. The panels, intro-
duced by Judge James L. Oakes (2d
Zir), chairman of the conference, con-
sidered defamation issues, "equaliza-
:ion" of free speech opportunities,
md commercial free speech. Yale Uni-
/ersity President Benno C. Schmidt,
r., was the dinner speaker. Judges
md conferees elected to participate in
3ne of several workshops, on the top-
es of separation of powers, sexual
?quality, and the framers' intentions
is to the functioning of the federal
rourts.

The 50th Annual Third Circuit Judi-
:ial Conference was held in Phila-
delphia in conjunction with the cele-
bration of the bicentennial in the
Constitution's city of origin. Chief
udge John J. Gibbons presided over a
urogram that included such special
events as a private showing of 40 orig-
nal documents from the Constitu-
:ional Convention. A panel discus-

sion on the Constitution's past fea-
tured Columbia University Law
School Dean Barbara A. Black, former
Secretary of Transportation William T.
Coleman, Jr., and Judge John T.
Noonan, Jr (9th Cir.). A discussion on
the Constitution's future featured
Anthony Lester, Q.C., from the
United Kingdom; Anthony Lewis of
the New York Times; former Judge
Edmund B. Spaeth, Jr.; and Chief
Judge Patricia M. Wald (D.C. Cir.).
Chief Judge Gibbons and Judge
Ruggero J. Aldisert (3d Cir.) gave "a
toast to the Constitution and to visit-
ing chief circuit judges," and Chief
Judge Gibbons made special remarks
honoring retired Justice Lewis F.
Powell, Jr.

Chief Judge Harrison L. Winter
welcomed conferees to the 57th Judi-
cial Conference for the Fourth Circuit,
held in Hot Springs, Va. Chief Justice
William H. Rehnquist, the circuit jus-
tice, addressed the conference. Pro-
fessor A. E. Dick Howard of the Uni-
versity of Virginia Law School spoke
on "Roots of the American Constitu-
tion," Professor Irving Younger spoke
on "Ulysses in Court," and a panel of
professors reviewed major Supreme
Court decisions of the October 1986
term.

Chief Judge Charles Clark opened
the 44th Annual Judicial Conference
of the Fifth Circuit, held in New Or-
leans, La. Attorney General Edwin
Meese III and business leader H. Ross
Perot addressed the conference. Pan-
els considered such topics as the fra-
ternity of courts and lawyers; judg-
ments without trials; recent Supreme
Court decisions; sanctions; and new
developments in bankruptcy. Duke
University Law Professor Walter E.
Dellinger III spoke on "The Summer
of 1787."

The 48th Annual Conference of the
Sbcth Circuit, held in Grand Rapids,
Mich., was devoted to the theme "The
Living Constitution: Into the Third
Century." Chief Judge Pierce Lively

University of Virginia

Announces 1988 Degree

Program for Judges

The University of Virginia Law
School is currently receiving ap-
plications for its Graduate Program
forjudges, scheduled to begin in the
summer of 1988. The program is de-
signed for federal and state appel-
late judges. U.S. district judges will
be considered for admission, al-
though only a few places are avail-
able for trial-level judges. Total en-
rollment is limited to 30.

The program is taught mainly by
full-time law faculty members at the
University of Virginia. Its focus is on
historical, jurisprudential, inter-
disciplinary, and comparative mate-
rial. Judges who successfully com-
plete the program receive the de-
gree of Master of Laws in the Judicial
Process.

The program requires attendance
at two consecutive summer resident
sessions of six weeks each at the law
school in Charlottesville. The 1988
and 1989 sessions will both run from
June 29 through Aug. 9. The dead-
line for applications is Jan. 29, 1988;
preference may be given to applica-
tions submitted earlier

Application forms and full infor-
mation can be obtained by calling or
writing the Program Director, Pro-
fessor Daniel J. Meador, University
of Virginia Law School, Charlottes-
ville, VA 22901, (804) 924-3947. Pro-
fessor Meador advises that funds in
the program are sufficient to cover
all expenses of federal judges who
are enrolled.

welcomed the conferees, and Justice
Antonin Scalia, the circuit justice, ad-
dressed the conference. Panel discus-
sions were devoted to such constitu-
tional topics as search and seizure, the
commerce clause, and the roles of the
President and Congress in foreign af-
fairs. Former President Gerald R. Ford
served as one of the commentators on
the foreign affairs panel.

At the Seventh Circuit Judicial Con-
ference in Chicago, Chief Judge
See CIRCUIT CONFERENCES, page 6

theTHBRDbranch

LEGISLATION, from page 1

each year of service up to 14 years.
Thus, upon reaching 65 years of age, a
bankruptcy judge or magistrate with
14 years of service could retire on full
salary. The annuity benefit would
vest after 8 years of service. Judge Sear
noted that attracting and retaining the

Study on Home

Confinement
Released by FJC

The use of home confinement
(also termed house arrest or home de-
tention) is on the rise. A newly avail-
able FJC report. Home Confinement:
An Evolving Sanction in the Federal
Criminal Justice System, by Paul Hofer
and Barbara Meierhoefer of the Cen-
ter's Research Division, found 12
districts where offenders have been
sentenced to home confinement as a
condition of probation. Other dis-
tricts have used home confinement
as a condiHon of pretrial release, and
the Bureau of Prisons and the Parole
Commission have included it as the
main feature in the curfew parole
program of supervised early release
from prison.

For electronic monitoring of those
sentenced to home confinement,
offenders are telephoned intermit-
tendy by computer or required to
wear radio transmitters to verify
their presence at home. This has
been used by only one federal dis-
trict so far but is planned for the near
future in four more districts. The
features of state programs and su-
pervision plans in federal districts
not using electronic monitoring are
described by the authors to help dis-
tricts develop a program suited to
their needs.

Although home confinement pro-
grams and electronic monitoring are
still new, the authors conclude from
this preliminary study that low-risk
offenders can be identified and safe-
ly controlled in the community.

Copies of the report can be ob-
tained from Information Services,
1520 H St., N.W., Washington, DC
20005. Please send a self-addressed
mailing label, preferably franked
(4 o/.), but do not send an envek)pe.

most qualified individuals to serve as
judges depends upon offering "the
promise of adequate financial protec-
tion upon reaching age 65." Since the
Bankruptcy Code became effective on
Oct. 1, 1979, 52 bankruptcy judges
have resigned from office; Judge Sear
testified that in addition to being fair
to bankruptcy judges, "the legislation
should also have the prachcal effect of
keeping judges on the bench for
longer periods of time."

Judge Skopil said that "the present
retirement system renders it virtually
impossible for a magistrate appointed
in mid-career to earn a suitable pen-
sion" and threatens "to reverse the
important strides made in the de-
velopment of the [magistrate] sys-
tem." Since the 1979 amendments to
the Federal Magistrates Act, he noted,
nearly 60 full-time magistrates have
left office prior to attaining their retire-
ment eligibility.

Appointment of independent
counsel. The House of Representa-
tives passed H.R. 2939, reauthorizing
for five years, with minor changes,
the procedure providing for the ap-
pointment of independent counsel.
The Senate has passed a similar meas-
ure; the bills will now go to
conference.

Vaccine injuries. Rep. Norman F.
Lent (R-N. Y.) and Rep. John J. Duncan
(R-Tenn.) have introduced H.R. 3546,
to amend the National Childhood
Vaccine Injury Act of 1986. That act set
up a no-fault compensation program
for vaccine injuries, which was to be
administered by the district courts.
However, by its terms, the program
was not to take effect until specially
funded (see The Third Branch, Sept.
1987, p. 5, and October 1987, p. 6
(comments of Assistant Attorney
General Richard Willard)).

The House Energy and Commerce
Committee recently approved modi-
fications to the original program. The
modifications would provide separate
funding for future and past cases:
children injured before Oct. 1, 1988,
would receive compensation for all
medical expenses from appropria-
tions authorized by the Energy and

Commerce Committee; those injured
after Oct. 1, 1988, would be compen-
sated from a trust fund financed by a
new excise tax. The modified plan
would limit the number of cases paid
from the trust fund to an average of
150 every 12 months. If more than 150
awards were paid, the Secretary of
Health and Human Services would be
required to notify Congress and close
the program to new applications after
six months. Subsequent to these En-
ergy and Commerce Committee mod-
ifications to the plan, the House Ways
and Means Committee authorized
creation of the trust fund and autho-
rized the special excise taxes for a
period of only four years.

H.R. 3546 would retain the basic
provisions of current law regarding
eligibility for compensation and the
types of economic injuries to be com-
pensated, but would establish a new
Vaccine Compensation Board to adju-
dicate claims for compensation. The
compensation scheme would be
See LEGISLATION, page 5

ALENDAR

Dec. 4 Judicial Conference Committee
on the Judicial Branch

Dec. 7-8 Judicial Conference Committee
on Administration of the Magis-
trates System

Dec. 8-9 Judicial Conference Committee
on Judicial Resources

Jan. 6 Workshop forjudges of the Eighth
and Tenth Circuits

Jan. 7-8 Judicial Conference Committee
on Administration of the Bank-
ruptcy System

Jan. 8-9 Judicial Conference Advisory
Committee on Bankruptcy Rules

As this issue goes to press the composition
and membership of several committees
are not final. However, tentative dates
have been set for meetings in anticipation
of the Mar. 15-16, 1988, Judicial Con-
ference session. Committee chairmen and
members will be notified personally tc
confirm the arrangements for their respec-
tive meetings.

BULLETIN OF THE
FEDERAL COURTS

LEGISLATION, from page 4

based on the worker's compensation
model; vaccine manufacturers would
be required to purchase insurance, or
to self-insure, and the cost of securing
the insurance would be a function of
the manufacturer's prior experience in
paying compensation for vaccine inju-
ries. In introducing the bill. Rep. Lent
noted constitutional concerns that
have been raised about the National
Childhood Vaccine Injury Act of 1986.
He stated that "by vesting, as it does,
the responsibility for administering
the compensation program in the dis-
trict courts, the law runs afoul of" Ar-

Personnel

Momination

Cenneth Conboy, U.S. District Judge,
S.D.N.Y., Nov. 5

Confirmations

Villiam L. Dwyer, U.S. District Judge,

W.D. Wash., Nov. 5
)avid G. Larimer, U.S. District Judge,

W.D.N.Y., Nov 5
ames A. Parker, U.S. District Judge,

D.N.M., Nov 5
Villiam L. Standish, U.S. District Judge,

W.D. Pa., Nov 5
irnest C. Torres, U.S. District Judge,

D.R.I., Nov. 5

Appointments

-harlesR. WoUe, U.S. District Judge, S.D.

Iowa, Aug. 12
liomas S. Ellis III, U.S. District Judge,

E.D. Va., Aug. 28
3hn D. Tinder, U.S. District Judge, S.D.

Ind., Sept. 10
mthonyj. Sdrica, U.S. Circuit Judge, 3d

Cir, Sept. 11
tephen A. Stripp, U.S. Bankruptcy

Judge, D.N.J., Sept. 15
jyce Bihary, U.S. Bankruptcy Judge,

N.D. Ga., Sept. 17
rwin I. Katz, U.S. Bankruptcy Judge,

N.D. 111., Sept. 25
>aniel J. Moore, U.S. Bankruptcy Judge,

DN.J., Sept. 30

tide Ill's "case or controversy"
requirement.

Criminal fines. The House of Rep-
resentatives has passed H.R. 3483, as
amended, known as the Criminal
Fine Improvements Act of 1987, and
the Senate had passed essentially the
same provisions in S. 1822 (see story
on amendment of the Sentencing Re-
form Act, p. 1). H.R. 3483 reflects an
agreement between the Department
of Justice and the AO as to how crimi-
nal fines shall be collected. During a
12-month transition period, it returns
the responsibility for the receipt of
fines to the clerk of court. Under the
present practice, the U.S. Attorney's

Irwin N. Hoyt, U.S. Bankruptcy Judge,

D.S.D., Oct. 2
Thomas E. Baynes, U.S. Bankruptcy

Judge, M.D. Fla., Oct. 6
William Thurmond Bishop, U.S. Bank-
ruptcy Judge, D.S.C., Oct. 9
William H. Brown, U.S. Bankruptcy

Judge, W.D. Tenn., Oct. 9
John S. Dalis, U.S. Bankruptcy Judge,

S.D. Ga., Oct. 14
J. Wendell Roberts, U.S. Bankruptcy

Judge, W.D. Ky., Oct. 16
Margaret H. Murphy, U.S. Bankruptcy

Judge, N.D. Ga., Oct. 19
John TeSelle, U.S. Bankruptcy Judge,

W.D. Okla., Oct. 19
M. DeeMcGarity, U.S. Bankruptcy Judge,

E.D. Wis., Oct. 26
Judith K. Fitzgerald, U.S. Bankruptcy

Judge, W.D. Pa., Oct. 30
Russell J. Hill, U.S. Bankruptcy Judge,

S.D. Iowa, Nov. 2

Resignation

William S. Sessions, Chief Judge, W.D.
Tex., Nov. 1

Retirement

Luther B. Eubanks, U.S. District Judge,
W.D. Okla., Sept. 1

Senior Status

Cari O. Bue, Jr, U.S. District Judge, S.D.

Tex., Sept. 2
JohnC. Godbold, U.S. Circuit Judge, 11th

Cir, Oct. 23

Death

Robert M. Hill, U.S. Circuit Judge, 5th
Cir., Oct. 19

office is responsible for receipt of
fines. Collection functions incident to
the judicial enforcement of fines re-
main with the Justice Department.
H.R. 3483 also amends the Sentenc-
ing Reform Act to conform its fine
provisions with the Criminal Fine En-
forcement Act of 1984, which was de-
veloped independently of and en-
acted after the Sentencing Reform Act
of 1984. The Criminal Fine Enforce-
ment Act was the product of the
House and Senate Judiciary Commit-
tees, the Department of Justice, the
AO, and the U.S. Parole Commission.
These parties agreed that the act's fine
provisions were superior to the crimi-
nal fine provisions of the Sentencing
Reform Act, but there was not enough
time near the end of the 98th Con-
gress to merge the two bills.

Marshal's Service. Rep. Robert
Kastenmeier (D-Wis.) has introduced
H.R. 3551, a bill to amend titles 18 and
28 of the U.S. Code with respect to
U.S. marshals. The bill, known as the
U.S. Marshals Service Act of 1987, is
intended to modernize and consoli-
date existing statutory provisions and
to provide a clear statutory basis for
the Marshals Service's current re-
sponsibilities. The bill would formally
establish the Marshals Service as a Bu-
reau of the Department of Justice (the
Service currently exists only by order
of the Attorney General). The bill also
explicitly authorizes the Marshals
Service to provide personal protection
to judges, U.S. attorneys, and other
federal officials, and retains the exist-
ing language of 28 U.S.C. § 569(a) re-
lating to the presence of marshals at
sessions of court.

Hatch Act. H.R. 3400, a bill to re-
form the Hatch Act, which governs
participation in partisan politics by ex-
ecutive branch employees, was ap-
proved by the House Post Office and
Civil Service Committee. The bill has
more than 280 cosponsors. (Although
the Hatch Act does not apply to em-
ployees of the judiciary, a long-
standing resolution of the Judicial
Conference adopted its intent as bind-
ing on judicial employees.) ■

THE

Dbpanch

1
I

i;
I'

CIRCUIT CONFERENCES, from page 3

William ]. Bauer spoke on the state of
the circuit, and Justice John Paul Ste-
vens, the circuit justice, reported on
the work of the Supreme Court.
Charles Fried, solicitor general of the
United States, also addressed the con-
ference. Following a long-standing
tradition, the annual meeting of the
Seventh Circuit Bar Association was
held in conjunction with the
conference.

The Eighth Circuit Judicial Con-
ference, held in Colorado Springs,
Colo., was opened by Chief Judge
Donald P. Lay. Justice John Paul
Stevens spoke on "Liberty Under the

Constitution." A panel chaired by
Judge Diana E. Murphy (D. Minn.)
and including Judges Constance
Baker Motley (S.D.N.Y.) and Ruth
Bader Ginsburg (D.C. Cir.) addressed
the topic "Women and the Constitu-
hon." Eighth Circuit judges and other
conferees presented a one-act play.
Signers of the Constitution— 200 Years
Later. CIA Director William H.
Webster, a former judge on the Eighth
Circuit Court of Appeals, gave a re-
port on his new position and the im-
plications of "Intelligence and Separa-
tion of Powers." Constitutional schol-
ar Bruce E. Fein and Stanford Law
School Dean Paul A. Brest conducted
a panel discussion on the doctrine of

Positions Available

Circuit Executive, 1st Cir. Salary to
$72,500. Works under direction of judi-
cial council pursuant to 28 U.S.C.
§ 332(a) and other statutes and rules.
Must have B.A. in management or re-
lated field, experience in administration
or equivalent. Legal training preferred
but not required. Certification pursuant
to 28 U.S.C. § 322(f) prerequisite to ap-
pointment, but applications from
qualified noncertified applicants encour-
aged. Send resumes by Jan. 15, 1988, to
Dana H. Gallup, Circuit Executive, U.S.
Court of Appeals, 1302 J. W. McCormack
Post Office & Courthouse, Boston, MA,
02109.

Assistant Circuit Executive, 7th Cir.
Starting salary to $45,763, depending on
experience and qualifications. Works
closely with the circuit executive and
judges of the circuit on administrative
and legal court matters. Familiarity with
DOS computer systems and a law degree
not essential, but will be important con-
siderations in the hiring decision. Open
until filled. Position description and sal-
ary information available from Circuit
Executive's Office, United States Court
of Appeals, 219 South Dearborn Street,
27th fltjor, Chicago, IL 60604.

Technical Assistant, Fed. Cir. Salary:
JSP-lin. Assists in reviewing panel-
approved opinions, reviewing briefs,
preparing evaluation reports, and advis-
ing judges and law clerks on legal or

technical matters; conducts tech-

nological and legal research; prepares
memos; performs other duties as di-

EQUAI. OPPORTUNITY EMPLOYERS

rected by senior technical assistant. Re-
quirements: undergraduate degree in or
relating to biological sciences and law
degree; bar admission and work experi-
ence in intellectual property law, engi-
neering, or technology desirable. Send
SF-171 by Apr 2 to address below.

Deputy Clerk (Case Initiation), Fed.
Cir. Salary to $22,458. Receives, reviews,
analyzes, and initiates the processing of
new cases. Requires responsible clerical
or administrative experience; B.A.,
M.A., or law degree may be considered
in place of general experience require-
ment. Position open until filled. Send
SF-171 and resume to Clerk, U.S. Court
of Appeals for the Federal Circuit, 717
Madison Place, N.W., Washington, DC
20439.

Clerk-Designate of Court, D. Mass.
$63,135 to $72,500. Person selected as
Clerk-Designate is expected to succeed
to position of Clerk of the Court upon the
retirement of the incumbent clerk on
Sept. 30, 1988, and during the transition
period will function in the role of chief
operations officer Requirements: Bach-
elor's degree, minimum of 10 years of
progressively responsible experience in
public service or business, including a
minimum of 3 years in a position of sub-
stantial management responsibility. To
apply, send a letter with resume by
Jan. 4, 1988 to Honorable Frank H.
Freedman, Chief Judge, U.S. District
Court, U.S. Court House, Post Office
Square, Boston, MA 02109. Attn; Ms.
Lillian Di Blasi, Room 306.

original intention in constitutional ad-
judication. Former Attorney General
Griffin Bell and Justice Stevens re-
sponded to comments of the
panelists.

The Ninth Circuit Judicial Con-
ference, in Waikoloa, Hawaii, joined
the national celebration of the bicen-
tennial by examining the subjects of
federalism and the courts' role in con-
stitutional interpretation. Justice
Sandra Day O'Connor, the circuit jus-
tice, spoke on the Constitution, and
Attorney General Meese and Sen.
Howell T. Heflin (D-Ala.) addressed
the conference. In addition to pres-
enting programs on the Constitution,
the conference continued the Judicial
Council's three-year examination of
the management practices of the
courts.

Chief Judge William J. Holloway, Jr.,
presided over the opening of the
Tenth Circuit Judicial Conference in
San Diego, Cal. The conference fea-
tured programs entitied "A Visit from
Supreme Court Justices of the Past"
and "The Constitution: Conversations
with Thomas Jefferson," in which an
attorney portraying Jefferson ap-
peared. Justice Byron R. White, the
circuit justice, and Attorney General
Meese addressed the conference.
Other programs dealt with separation
of powers and the Constitution's im-
pact on education.

The Sixth Annual Judicial Con-
ference of the Eleventh Circuit was
held in Birmingham, Ala. Chief Judge
Paul H. Roney delivered a state of the
circuit address, which reported on fil-
ings and dispositions in the circuit,
Criminal Justice Act and capital cases,
and administrative matters. Sen.
Heflin and AO Director L. Ralpli
Mecham addressed the meeting, and
Justice Lewis E Powell, Jr., the circuit
justice, reviewed cases decided dur-
ing the last term of the Supreme
Court. The bicentennial presentatior
included a talk by Judge Thomas M
Reavley (5th Cir.) on lessons that car
be drawn from the way in which the
framers of the Constitution reachec
See CIRCUIT CONFERENCES, page !

BULLETIN OF THE
FEDERAL COURTS

CIRCUIT CONFERENCES, from page 6

agreement, and remarks by Duke
University Law Professor William W.
Van Alstyne on the present Constitu-
tion and its future.

The 48th Annual Judicial Con-
ference of the D.C. Circuit was held in
Hot Springs, Va., with Chief Judge
Patricia M. Wald presiding. The sub-
ect of sentencing reform was ad-
dressed by a panel of participants:
udge Ruth Bader Ginsburg (D.C.
lir.); Judge Louis F. Oberdorfer
D.D.C.); Suzanne Conlon, executive
lirector of the U.S. Sentencing Com-
nission; U.S. Attorney Joseph
liGenova; and Cheryl Long, chief of
he Public Defender Service. Other
)anels made presentations on prob-
ems arising under the independent
ounsel law, the religion clauses, con-
titutional adjudication and the inten-
ion of the framers, and sanctions.

The Fifth Annual Judicial Con-
jrence of the Federal Circuit was held
n Washington, D.C. Chief Judge
loward T. Markey gave the state of
le court address. Judge Robert H.
ork (D.C. Cir.) and Yale University
aw Professor Harry H. Wellington
iscussed constitutional interpreta-
on, and Chief Justice Warren E.
urger (ret.) spoke. Separate break-
ut sessions were held on the work of
le Court of International Trade, the
laims Court, Merit Systems Protec-
on Board cases, and patents and
ademarks.

The United States Claims Court
eld its first judicial conference in
/illiamsburg, Va. The conference's 85
articipants held small- and full-
roup sessions that analyzed the liti-
ation process in the court. Topics of
iscussion included summary judg-
lent and other pretrial motions prac-
:e, the question of developing small
aims procedures in the Claims
ourt, and the effectiveness of rules
id standard pretrial procedures,
ther sessions reviewed occurrences
id trends in the areas of contracts
id pay cases; tax cases; and takings,
idian claims, and patents. A full-
•oup session looked at legislation af-
cting the court. ■

House Panel Hears Corrections, Parole Officials
Discuss AIDS Policies for Prisoners, Parolees

Federal prison and parole officials
discussed the effect of acquired im-
mune deficiency syndrome (AIDS) on
such issues as the testing of inmates
and conditions of parole at a recent
hearing of the House Judiciary Com-
mittee's Subcommittee on Courts,
Civil Liberties, and the Administra-
tion of Justice. J. Michael Quinlan, di-
rector of the Bureau of Prisons, and
Benjamin F. Baer, chairman of the
U.S. Parole Commission, were among
those testifying. Donald L. Chamlee,
chief of the Division of Probation of
the AO, submitted a statement.

In June, it was announced that the
Bureau of Prisons would begin a pro-
gram of testing newly sentenced in-
mates and all inmates about to be re-
leased from prison for antibodies to
the HIV virus (the suspected cause of
AIDS). The Parole Commission began
considering what actions, if any, are
appropriate in the case of parolees
whom the Commission knows to be
antibody-positive. Among the ap-
proaches considered were counseling
infected individuals; reporting that
parolees tested antibody-positive; re-
leasing medical information to the
probation officer; requiring as a con-
dition of parole that the parolee dis-
close his or her condition prior to en-
gaging in behavior that is high-risk for
transmission; and other disclosures as
directed by the probation officer. Fol-
lowing its July meeting, the Commis-
sion published in the Federal Register
for public comment a series of general
questions (52 Fed. Reg. 158 (1987)),
and also solicited comments from the
Bureau of Prisons, the Probation Divi-
sion of the AO, the National Institute
on Drug Abuse, the President's Com-
mission on AIDS, the Surgeon Gener-
al, the Department of Justice, and the
American Civil Liberties Union.

At the Subcommittee hearing,
Mr. Baer discussed the Parole Com-
mission's recent deliberations con-
cerning its policy toward parolees
who have AIDS or have tested

positive for exposure to the HIV virus.
He described the tension between the
Commission's desire to protect per-
sons from exposure to AIDS and its
concern that it respect the privacy
rights of parolees and stay within its
legal authority. Noting that the Parole
Commission's statute authorizes it to
impose conditions of parole on a pa-
rolee that are reasonable "to protect
the public welfare," Mr. Baer said the
Commission had concluded that this
legislative phrase charges the Com-
mission with protecting the public
from criminal acts, but does not per-
mit it to impose a condition that is
only designed to protect the public
from the noncriminal spread of a dis-
ease. Accordingly, "the Commission
does not view itself, under its statute,
as having the power to take action
directed solely to protecting the pub-
lic from the spread of AIDS, at least to
the extent that activity which would
spread AIDS is not also criminal ac-
tivity," Mr. Baer testified.

Mr. Quinlan testified on the preva-
lence of AIDS among inmates and on
the Bureau's AIDS policy. A pilot pro-
gram of testing newly sentenced pris-
oners and all inmates within 60 days
of release was begun June 15, 1987.
The testing of all incoming inmates
was discontinued Sept. 30, 1987, but a
5 percent sample of incoming inmates
will be tested. All releasees will con-
tinue to be tested, as will those in-
mates who exhibit any clinical indica-
tions of the virus; those who ask to be
tested; those who are going to be in-
volved in community activities; and
those who have exhibited "predatory
and promiscuous behavior." Of 8,832
newly committed prisoners tested,
216 (or 2.44 percent) have tested
antibody-positive. Of the 4,430 pris-
oners tested prior to release, 114 (or
2.57 percent) tested positive. The test-
ed group of newly admitted inmates
will be retested to give the Bureau

See AIDS, page 8

THE

BRANCH

AIDS, from page 7

information about the risk of acquir-
ing the infection during confinement.
Of a total inmate population of
44,000, the Bureau has 31 inmates
with "end-stage AIDS," Mr. Quinlan
testified. He noted that inmates who
have tested antibody-positive but
have no disease symptoms will be
continued in the general prison en-
vironment; inmates who are going to
participate in community activities
will be required to notify their
spouses of positive test results; and
"infected inmates who are sexually ac-
tive homosexuals or intravenous drug
users may require separation from the
regular inmate population." Based on
interviews of prisoners who have test-
ed positive, intravenous drug use is
the high-risk behavior dominant
among antibody-positive inmates,
Mr. Quinlan said; Bureau efforts
aimed at curbing the illicit use of drugs
within prison have "shown significant
progress in the last two years."

Mr. Chamlee's statement noted the
"enormously complex problems re-
garding the proper criminal justice re-
sponse to what is, in our view, essen-
tially a public health problem." It
described an AIDS workshop that the
Probation Division held, with the
sponsorship of the FJC, at the Na-
tional Conference for Chief and Dep-

uty Chief U.S. Probation and Pretrial
Services Officers in June, and noted
that the Division has held meetings
and established dialogues with vari-
ous agencies concerned, including
the Parole Commission, and ex-
pressed hope that such communica-
tion will enable the Division and the
Commission "to develop unified su-
pervision policies" in addressing its
responsibilities. •

REHNQUIST, from page 1

About a year ago I appointed a com-
mittee of the Judicial Conference to
look into the structure and operation
of that body. The Committee met sev-
eral times and prepared a report with
recommendations which were
adopted by the Judicial Conference at
its September meeting. The thrust of
these recommendations was to autho-
rize the appointment by me of a nota-
bly strengthened Executive Commit-
tee, to streamline the Conference's
committee structure and to make
committee assignments more readily
available to those judges who are in-
terested in having them. I have ap-
pointed Chief Judge Wilfred Feinberg
of the Court of Appeals for the Second
Circuit as Chairman of the Executive
Committee, and have appointed
Judges Levin H. Campbell, Charles
Clark, Paul H. Roney, Aubrey E.

Robinson, John E Nangle, and Robert
F. Peckham as members of the
Committee.

I wish I could say we had beer

equally successful in our dealings

with the Executive and Legislative

Branches of the government; unfor

tunately we have not. The Presiden

drastically scaled down the recom

mendations to Congress made by th<

Salary Commission, and Congres:

did not disapprove them. A modes.

pay raise for judges thereby went int(

effect, but I still believe that the sal

aries of federal judges fall consider

ably short of what they ought to be

On November 1, 1987, Congress ac

cepted the United States Sentencin

Commission's recommended ser

tencing guidelines. The Judicial Cor

ference and the Commission had bot

requested that Congress delay th

effective date of these guidelines, bi

Congress declined to do so. All of i:

in the Judiciary now must turn to tb

task of putting these new standarc

into operation.

Fortunately, enjoyment of the hoi
day season need not depend on ho
well the Judicial Branch fared at t\
hands of the Legislative and Executi^
Branches. I extend to each of you ar
your families the very best wishes f
a Merry Christmas and a Happy Ne
Year.

BULLETIN OF THE FEDERAL COURTS

HDbeanch

Vol. 19 No. 12 December 1987

First
Class
Mail

The Federal judicial Center

Dolk'y Madison House
1520 H Street, N.W.
Washington, DC 20005

Postage ar
fees paid
United Stal
Courts

Official Business

U.S. GOVERNMFN'F I'KINTINC OFFICE 1987-181-221-60009

BULLETIN OF THE FEDERAL COURTS

-04'

^-««^

THE L H I KUbranch

Index to Volume 19, January-December 1987

Administrative Conference of the U.S.

Activities discussed by Administrative Conference
Chairman M. J. Breger, 1:1

Adnunistrative Office of the U.S. Courts (AO)
Court Administration Division established, 8:1
Distinguished service program begun, 2:3
E. L. Stoorza named assistant director for automation

and statistics, 4:4
Employees recognized for cost savings, 7:4
K. K. Siegel appointed chief of Office of the Judicial

Conference Secretariat, 11:2
R. A. Karam appointed assistant director for

administration, 5:7
R. E. Feidler named head of Legislative and Public

Affairs Office, 3:3
R. W. Mundy recognized for distinguished service, 6:4

AIDS and AIDS-Related Complex

Subcommittee on Courts, Civil Liberties, and the

Administration of Justice hearing discusses AIDS
policies for federal prisoners and parolees, 12:7

Testing of federal prisoners for exposure to AIDS
discussed by Bureau of Prisons Director J. M.
Quinlan, 9:9

Alternative Dispute Resolution (ADR)

Administrative Conference Chairman M. J. Breger

discusses, 1:6
Attorney held in contempt for refusal to proceed with

summary jury trial, 7:4
Bills to encourage ADR introduced in House, 6:10
Chief Judge H. L. Winter discusses Fourth Circuit use of

ADR, 8:7
D.C. Circuit and U.S. Claims Court programs for various

ADR techniques, 6:1
Ford Foundation funding for research on ADR, 11:4
Negotiated rulemaking in administrative agencies

discussed by Assistant Attorney General R. K.

Willard, 10:1
See a/so Arbitration, Minitrials, Summary Jury Trial

American Bar Association

Adopts new principle on grand jury abuse, 10:1

Annual meeting, 10:1

Midyear meeting, 4:2

Proposes salary increases for bankruptcy judges, 10:9

Role in judicial selection process noted by Deputy

Attorney General A. I. Burns, 3:7
Supports legislation to amend federal statute on judicial

disqualification, 10:9

American Law Institute

Chief Justice W. H. Rehnquist addresses Institute, 7:1

Amicus Curiae

Filings in federal courts discussed by Solicitor General
C. Fried, 4:7

Antitrust Issues, International

Deputy Attorney General A. I. Bums discusses, 3:5
State Department Legal Adviser A. D. Sofaer discusses,
2:7

Arbitration

Assistant Attorney General R. K. Willard discusses, 10:6
Court -annexed arlytration discussed by Rep. R. L.

Mazzoli, 5:10
See also Alternative Dispute Resolution (ADR)

Asbestos Litigation

FJC publishes Trends in Asbestos ^ff^f^-^f^^ ILLIINOIS

LAW LIBRARY

11:3

JAN 4 m^

Attorney Discipline

Attorney disbarment case, 6:3
See also Sanctions

pFrDSRAL DEPOSrl

Attorney General's Advocacy InstlttSte

Training of Justice Department lawyers by Institute
discussed by Deputy Attorney General A. I. Burns,
3:4

Attorney Orientation

Program announced in Southern District of New York,
3:7

Augustyn, Noel J.

Appointed administrative assistant to Chief Justice, 1:1

Automation in Federal Courts

Chief Judge W. J. Hollo way, Jr., discusses, 11:7
Chief Judge W. S. Sessions discusses, 6:1, 6:6

Bail Reform Act of 1984

FJC publishes The Bail Reform Act of 1984 (Golash), 6:5

Bankruptcy

Automation in bankruptcy courts, 6:6, 7:8
Tenth Circuit filings discussed by Chief Judge W. J.
Hollo way, Jr., 11:7

Bankruptcy Court Rules

Amendments to rules, 5:5

Interim local rules recommended by JCUS Advisory
Committee on Bankruptcy Rules, 3:1

Bankruptcy Judges

ABA resolution proposed to increase salaries, 10:9

jEY

Chapter 12 cases discussed by Chief Judge M. V. B.
Bostetter, Jr., I'H

Contempt power of bankruptcy judges construed by
Ninth Circuit, 11:4

Educational programs for bankruptcy judges dis-
cussed by Chief Judge M. V. B. Bostetter, Jr., I'l,
7:8

Orientation sessions for chief judges initiated by AO
and FJC, 7:3

Retirement and survivors' annuities legislation, 11:10,
12:1

Becker, Edward R.

Testifies at Senate Judiciary Committee hearing on
Sentencing Guidelines, 12:2

Bicentennial of the U.S. Constitution

Extended through 1991, 1:3
Judiciary's celebration, 9:1

Boadwine, June L.

Appointed circuit executive for Eighth Circuit, 9:4

Board of Immigration Appeals

Role of board discussed by Rep. R. L. Mazzoli, 5:1, 5:8

Bostetter, Martin V. B., Jr.

Interviewed, 7:1

Breger, Marshall J.

Interviewed, 1:1

Bremson, Francis L.

Appointed circuit executive for Ninth Circuit, 7:3

Brookings Institution

Holds colloquium on relationship between judiciary
and Congress, 1:3

Burger, Warren E.

Accomplishments listed by Chief Justice W. H.
Rehnquist in his year end statement, 2:5

Burns, Arnold I.

Interviewed, 3:1

Calendaring

FJC publishes Calendaring Practices of the Eastern
District of North Carolina (Olson), 4:3

Capital Cases

ABA resolution concerning additions to mental health

standards, 10:9
Department of Justice position on applicability of

sentencing guidelines to capital cases, 3:6
Sentencing Commission hearing, 3:3

Carlson, Norman

Retires as director of Bureau of Prisons, 5:3

Caseloads

AO statistical report on caseloads, 6:2, 8:6, 1 1 :4
FJC to conduct time study of caseload demands on

district judges and magistrates, 11:2
Fourth Circuit caseload discussed by Chief Judge H. L.

Winter, 8:1
Southern District of Florida caseload, 10:5
Southern District of New York caseload, 7:3
Tenth Circuit caseload discussed by Chief Judge W. J.

HoUoway, Jr., 11:6

Cases

Cardoza-Fonseca v. Immigration & Naturalization Service,

5:1
Northern Pipeline, 7:1, 7:6
Pulliam V. Allen, 9:5
Regents v. Bakke, 4:6
Roe V. YJade, 4:7
Sharon v. Time Magazine, 2:9
Shelley v. Kraemer, 4:6
Thornburgh v. American College of Obstetricians &

Gynecologists, 4:7

Central Violations Bureau

Chief Judge W. S. Sessions discusses, 6:6

Certification of State Law Questions

Chief Judge W. J. Hollo way, Jr., discusses, 11:8

Circuit Judicial Conferences

District of Columbia Circuit, 12:7
Federal Circuit, 5:7
Summarized, 12:3

Claims Court, U.S.

Alternative Dispute Resolution Program, 6:1

Judicial conference, 12:7

Coffin, Frank M.

Participates in Brookings Institution colloquium on
relations between judiciary and Congress, 1:3

Commission on Executive, Legislative, and Judicial
Salaries — See Judicial Salaries

Computer-Assisted Legal Research (CALR)

Expansion of CALR discussed by Chief Judge W. S.
Sessions, 6:6

Computers — See Automation in Federal Courts;
Computer-Assisted Legal Research (CALR)

Constitution, U.S.

Smithsonian Institution symposium on the Constitution,

2:2
See also Bicentennial of the U.S. Constitution

Conyers, John, Jr.

Chairs hearings on sentencing guidelines, 9:1
Introduces bill to allow counsel in grand jury room, 7:2

Court-Appointed Attorneys

Use of court-appointed attorneys in civil cases in

Western District of Texas discussed by Chief Judge
W. S. Sessions, 6:8

The Third Branch, Index to Volume 19

Death Penalty — See Capital Cases

Devitt Distinguished Service to Justice Award

Judge E. T. Gignoux receives 1986 Devitt Award, 4:3
Nominations sought for 1987 Devitt Award, 10:2

District of Columbia Circuit, U.S. Court of Appeals for

Alternative Dispute Resolution Program, 6:1
Judicial conference, 12:7

Diversity Jurisdiction

ABA approves resolution calling for increase in amount

in controversy requirement, 4:2
Elimination of diversity jurisdiction discussed by

Assistant Attorney General R. K. Willard, 10:9
Rep. R. L. Mazzoli discusses, 5:10, 5:11

Dominick, Mary F.

Selected as 1987-1988 Judicial Fellow, 10:3

Drugs

ABA memorandum concerning the Anti-Drug Abuse

Act of 1986, 3:2
Drug cases in Fourth Circuit discussed by Chief Judge

H. L. Winter, 8:7
Drug testing of government employees discussed by

Assistant Attorney General R. K. Willard, 10:6
FJC publishes The Impact of the Federal Drug Aftercare

Program (Eaglin), 2:3
War on drugs described as number-one priority of

Justice Department by Deputy Attorney General

A. I. Burns, 3:2

Electronic Docketing

Chief Judge W. S. Sessions discusses, 6:6

Equal Access to Justice Act

Administrative Conference Chairman M. J. Breger
discusses, 1:6

Ethics in Government Act

ABA resolution on Act, 10:9

Exclusion Orders

Review of exclusion orders in federal courts discussed
by Rep. R. L. Mazzoli, 5:10

Extradition

Treaty between the United States and Great Britain

discussed by State Department Legal Adviser A. D.

Sofaer, 2:8

Farmers Home Administration

Discussed by Chief Judge M. V. B. Bostetter, Jr., 7:7

Federal Courts Study Act

House bill introduced, 10:10

Introduction of act discussed by Rep. R. L. Mazzoli,

5:10
Senate bill introduced, 8:5

Federal Circuit, U.S. Court of Appeals for

ABA-proposed resolution on Federal Circuit, 10:1
Judicial conference, 5:7, 12:7

Federal Deposit Insurance Corp. (FDIC)

Hiring of private attorneys noted by Administrative
Conference Chairman M.J. Breger, 1:5

Federal Judicial Center

A. L. Levin retires as director, 4:1
Bill amending governing statute introduced, 7:1
Judge A. B. Rubin elected to Board, 3:1
Judge A. M. Kennedy elected to Board, 4:1
Judge J. C. Godbold selected as director, 6:1
Judge R. E. Ginsberg elected to Board, 11:1
Judge W. C. ^Kelley elected to Board, 4:1
R. S. Fennell named director of Innovations and

Systems Development Division, 5:6
Sentencing guideline training sponsored by FJC, 12:2

Federal Rules of Civil Procedure

Amendment to rule 51, 9:3

Amendments to rules become effective, 5:5

Hearing on bill to amend rule 47(a), 9:5

New York State Bar Association survey on rule 11

sanctions, 8:2
Third Circuit task force on rule 11 sanctions, 9:4

Federal Rules of Criminal Procedure

ABA asks Congress to retain rule 35(b), 4:9
Amendment to rule 30, 9:3
Amendments to rules become effective, 5:5
Hearing on bill to amend rule 24(a), 9:5
Hearing set on proposed rule 12.3, 1:2

Feidler, Robert E.

Named head of Legislative and Public Affairs Office of
the AO, 3:3

Fennell, Richard S.

Named director of FJC Innovations and Systems
Development Division, 5:6

Ford Foundation

Funds alternative dispute resolution research program,
11:4

Foreign Nationals

Civil suits against foreign nationals discussed by
Assistant Attorney General R. K. Willard, 10:7

Freedom of Information Act (FOIA)

Proposed independent agency to hear disputes under
FOIA discussed by Administrative Conference
Chairman M.J. Breger, 1:6

Presentence reports ordered disclosed under FOIA, 8:6

Fried, Charles

Interviewed, 4:1

Gahl, Thomas E.

Murder of U.S. Probation Officer Gahl noted, 2:3

The Third Branch, Index to Volume 19

1;
1'

Gignoux, Edward T.

Receives 1986 Devitt Distinguished Service to Justice
Award, 4:3

Ginsberg, Robert E.

Elected to FJC Board, 11:1

Godbold, John C.

Selected as director of FJC, 6:1

Grand Juries

ABA principle concerning grand jury abuse, 10:1

Hastings, Alcee L.

House Judiciary Committee subcommittee investigates,

10:4,11:9
Judicial Conference certifies impeachment may be

warranted, 4:5

Heflin, Howell T.

Introduces Judicial Branch Improvements Act of 1987

and Federal Courts Study Act, 8:5
Introduces retirement and survivor annuities bill for

bankruptcy judges and magistrates, 10:1

HoIIoway, William J., Jr.

Interviewed, 11:1

Home Confinement

FJC publishes Home Confinement: An Evolving Sanction
in the Federal Criminal Justice System (Hofer &
Meierhoefer), 12:4

Immigration Appeals Board

Role of board discussed by Rep. R. L. Mazzoli, 5:1, 5:8

Immigration Law

FJC publishes Major Issues in Immigration Law (Martin),
5:9

Immigration and Nationality Act

Proposed amendments to Act discussed by Rep. R. L.
Mazzoli, 5:8

Immigration and Naturalization Service (INS)

Effect on INS work of Cardom-Fonseca v. INS discussed
by Rep. R. L. Mazzoli, 5:1

Immigration Reform and Control Act of 1986

Discrimination provisions of Act discussed by Rep.
R. L. Mazzoli, 5:8

Independent Counsel

Reauthorization of independent counsel provisions of
Ethics in Government Act of 1978 supported by
ABA, 10:9

Intercircuit Assignment of Judges

New guidelines approved by Chief Justice W. H.
Rchnquist, 1:2

Internal Revenue Service (IRS)

Administrative Conference study of IRS procedures
discussed by Administrative Conference Chairman
M. L. Breger, 1:4

Judgeships

Bankruptcy judgeships discussed by Chief Judge

M. V. B. Bostetter, Jr., 7:6
Legislation to create new judgeships, 6:5

Judicial Appointment Process

Deputy Attorney General A. I. Bums discusses, 3:6

Judicial Conference of the United States (JCUS)

Committees restructured, 11:3

Conference interaction with Administrative Conference

discussed by Administrative Conference Chairman

M.J. Breger, 1:1
Resolutions on sentencing and salaries passed, 5:1
Subcommittee on Judicial Improvements discussed by

Chief Judge W. S. Sessions, 6:1
Three new committee chairmen and new committee

appointed by Chief Justice, 1:2

Judicial Disqualification

ABA supports legislation to amend federal statute
relating to judicial disqualification, 10:9

Judicial Education

FJC seminars for bankruptcy judges discussed by Chief

Judge M. V. B. Bostetter, Jr., 7:6
University of Nevada program offered, 11:4
University of Virginia announces 1988 degree program,

12:3
See also Seminars, Conferences, and Symposia

Judicial Fellows

Selected for 1987-1988, 10:3

Judicial Immunity

Bankruptcy trustee held entitled to judicial immunity
in Ninth Circuit, 6:10

Cases construing scope of doctrine, 2:4, 8:6, 9:5, 10:4

Legislation to reverse or limit Pulliam v. Allen in-
troduced, 9:5

Probation officer's discharge as affected by judicial
immunity, 8:6, 10:4

State board of bar examiners and character and fitness
committee entitled to judicial immunity, 9:5

State court clerk, deputy not immune from suit, 2:4

Judicial Salaries

Bankruptcy judges' salaries discussed by Chief Judge

M. V. B. Bostetter, Jr., 7:6
Commission on Executive, Legislative, and Judicial

Salaries recommendations, 2:1
Increase for bankruptcy judges proposed in ABA

resolution, 10:9
Increases supported by Chief Justice W. H. Rchnquist,

2:1
Increases urged by Chief Judge W. S. Sessions, 6:8

The Third Branch, Index to Volume 19

Jurors

AO data on utilization of jurors, 5:2

Second Circuit decision construing 1978 Jury System

Improvements Act, 4:10
Selection of jurors by magistrates in felony cases not

permitted, 10:2
See also Jury Trials

Jury Trials — See also Jurors

Ninth Circuit ruling on suspension of jury trials not

vacated, 4:10
See also Jurors

Karam, Raymond A.

Appointed assistant director for administration at AO,
5:7

Kastenmeier, Robert W.

Chairs hearing on Court Reform and Access to Justice

Act, 11:2
Introduces bill to amend FJC governing statute, 7:1
Introduces bill to encourage use of arbitration, 6:10
Introduces bill to provide new retirement system for

magistrates and bankruptcy judges, 7:2
Introduces Omnibus Court Reform Act of 1987, 10:1

Kennedy, Anthony M.
Elected to FJC Board, 4:1

Legal Services Corporation

Rep. R. L. Mazzoli discusses, 5:11

Legislation

Criminal Fine Improvements Act of 1987, 12:5
Electronic Communications Privacy Act of 1986, 4:5
Federal Courts Study Commission bills introduced, 8:5,

10:10
Federal rulemaking process bill, 8:3
Hatch Act amendments proposed, 12:5
Independent counsel reauthorization, 12:4
Judgeship creation, 6:5
Judicial immunity, 9:5

Lie detector tests, use by private employers, 8:5
Mandatory jurisdiction of Supreme Court, 10:1
National Childhood Vaccine Injury Act of 1986 and

proposals to amend, 2:2, 9:5, 12:4
Retirement and survivor annuities for bankruptcy

judges and magistrates bills, 10:1, 11:3, 12:1
RICO amendment bills, 10:10
Sentencing guideline issues, 11:1
Sentencing Reform Act amendment, 12:1
U.S. Marshals Service Act of 1987 introduced, 12:5

Levin, A. Leo

Retires as director of FJC, 4:1

Testifies on Federal Courts Study Act proposal, 8:5

Lively, Pierce

Service to judiciary noted by Rep. R. L. Mazzoli, 5:11

Local Rules of Court

Bill to establish review of local rules for consistency with
national rules, 8:3

Local rule on discovery in prisoners' pro se petitions

held invalid, 7:3
Local rule requiring residency or maintenance of office

for bar membership struck down, 9:4

Magistrates, U.S.

ABA resolution proposed to increase magistrates'

salaries, 10:9
Magistrates may not preside over felony jury selection

in Fifth Circuit, 10:2
Plaintiff may not withdraw consent to trial before

magistrate, 7:3
Retirement provisions bill, 7:2

Marshals Service, U.S.

Legislation to provide clear statutory basis for re-
sponsibilities of Marshals Service introduced, 12:5

Mazzoli, Romano L.

Interviewed, 5:1

Mazzone, A. David

Testifies before Senate Judiciary Committee hearing on
sentencing guidelines, 12:2

McCarran Act

Exclusion of foreign citizens from U.S. under the Act
discussed by State Department Legal Adviser A. D.
Sofaer, 2:9

Mecham, L. Ralph

Announces establishment of Court Administration
Division of AO, 8:1

Recognizes employees for cost savings, 7:4

Transmits bills on omnibus, diversity jurisdiction, and
judgeship creation to Congress, 6:2

Transmits draft of bill for improving court interpreter
program, 7:2

Transmits draft of new retirement program for bank-
ruptcy judges and magistrates, 5:2

Meese, Edwin

Solicitor General C. Fried discusses his working rela-
tionship with Attorney General Meese, 4:6

Minitrials

Department of Justice guidelines for use of minitrials in
commercial disputes discussed by Assistant Attor-
ney General R. K. Willard, 10:1

See also Alternative Dispute Resolution (ADR)

Money Laundering

ABA urges Congress to amend Money Laundering
Control Act of 1986, 4:9

Mimdy, R. Ward

Distinguished service to AO recognized, 6:4

Murret, Eugene J.

Appointed circuit executive for Tenth Circuit, 7:3

National Childhood Vaccine Injury Act

Assistant Attorney General R. K. Willard discusses, 10:6

The Third Branch, Index to Volume 19

Rep. R. L. Mazzoli discusses, 5:11
Role of special masters discussed by Deputy Attorney
General A. I. Burns, 3:4

National Court of Appeals

Assistant Attorney General R. K. Willard discusses, 10:8
Chief Judge H. L. Winter discusses, 8:8
Supported by Chief Justice W. H. Rehnquist, 7:1

National Institute of Corrections

Role within Bureau of Prisons noted by Bureau of
Prisons Director J. M. Quinlan, 9:7

O'Kelley, William C.

Elected to FJC Board, 4:1

Opinions

Circulation and publication of opinions in Fourth

Circuit discussed by Chief Judge H. L. Winter, 8:9,
8:10

Printing of opinions in Tenth Circuit discussed by Chief
Judge W. J. Holloway, Jr., 11:6

Organized Crime

Department of Justice actions against organized crime
discussed by Deputy Attorney General A. I. Burns,
3:2

Original Jurisdiction of Supreme Court

Cases involving foreigners discussed by State
Department Legal Adviser A. D. Sofaer, 2:9

Pearson, Albert M.

Selected as 1987-1988 Judicial Fellow, 10:3

Powell, Lewis F., Jr.

Retires from Supreme Court, 8:1

Prisons and Corrections

AIDS testing and policies, 9:9, 12:7

Construction of additional prisons discussed by Bureau

of Prisons Director J. M. Quinlan, 9:8
Federal prison population growth, 9:6
J. Michael Quinlan becomes new director of Bureau of

Prisons, 5:3
Norman Carlson retires as director of Bureau of Prisons,

5:3
Privatization of prisons discussed by Director of Bureau

of Prisons J. M. Quinlan, 9:6
State prison population increases, 2:4
See also Sentencing Commission, U.S.

Probation and Pretrial Services

Staff safety training programs described, 2:3

Publications

Achieving Balance in the Developing Law of Sanctions (FJC),

6:5
The Hail Reform Act of 1984 (FJC), 6:5
Calendaring Practices of the Eastern District of North

Carolina (FJC) 4:3

Federal Judicial Workload Statistics— December 1986 (AG),

6:2
Federal judicial Workload Statistics— March 1987 (AG), 8:6
Federal Offenders in the United States Courts 1985 (AG),

10:4
Federal Probation (AG), 10:4
High Quality Leadership — Our Government's Most

Precious Asset (Commission on Executive, Legisla-
tive, and Judicial Salaries), 2:4
Home Confinement: An Evolving Sanction in the Federal

Criminal Justice System (FJC), 12:4
The Impact of the Federal Drug Aftercare Program (FJC),

2:3
Major Issues in Immigration Law (FJC), 5:9
1987 Catalog of Audiovisual Media Programs (FJC), 7:4
Staff Safety Instructor's Manual (FJC), 2:3
Summary Judgment Practice in Three District Courts (FJC),

9:5
Supplementary Report on the Initial Sentencing Guidelines

and Policy Statements (U.S. Sentencing

Commission), 8:2
Trends in Asbestos Litigation (FJC), 11:3
U.S. District Courts: Sentence Comparison Reports (AG),

6:2

Quinlan, J. Michael

Appointed new Director of Bureau of Prisons, 5:3

Interviewed, 9:1

Testifies on AIDS policies before Subcommittee on

Courts, Civil Liberties, and the Administration of

Justice, 12:7

"Race to the Courthouse" Bill

Efforts to enact bill described by Administrative
Conference Chairman M. J. Breger, 1:7

Rehnquist, William H.

Addresses ABA midyear meeting, 4:2

Appoints ad hoc committee to study the work of the

Judicial Conference, 1:2
HoHday message, 12:1
Intercircuit assignment of judges, new guidelines on

approved, 1:2
Names Judicial Conference committee chairmen, 1:2
Special message on ad hoc committee to study the

work of the Judicial Conference, 5:1
Speech to American Law Institute, 7:1
Year end statement, 2:1

Reports — See Publications

Retirement Provisions

Enhanced coverage for bankruptcy judges and

magistrates considered, 11:10, 12:1
Judiciary system provisions summarized, explained,

11:3

RICO

ABA asks Congress to limit availability of private civil
actions under RICG, 4:9

77m Third Branch, Index to Volume 19

Assistant Attorney General R. K. Willard discusses,

10:7
Bill to amend civil RICO provisions introduced, 10:10
Deputy Attorney General A. I. Burns discusses, 3:5

Rubin, Alvin B.
Elected to FJC Board, 3:1

Salaries, Judges — See Judicial Salaries

Sanctions

FJC publishes Achieving Balance in the Developing Law

of Sanctions (Levin & Sobel), 6:5
New York State Bar Association survey on Fed. R. Civ.

P. 11 sanctions, 8:2
Third Circuit task force on Fed. R. Civ. P. 11 sanctions,

9:4

Scalia, Antonin

Addresses ABA midyear meeting, 4:4

Seminars, Conferences, and Symposia

Brookings Institution colloquium on relationship

between judiciary and Congress, 1:3
FJC seminar for appellate judges announced, 8:3
FJC seminar on constitutional adjudication, 1:1
FJC seminars for bankruptcy judges discussed by

Chief Judge M. V. B. Bostetter, Jr., 7:6, 7:7, 7:8
Smithsonian Institution symposium on Constitution,

2:2

Sentencing Act

Congress amends Act to clarify conduct to which Act
applies, 12:1

Sentencing Commission, U.S.

Draft worksheets for sentencing guidelines application
distributed, 7:2

FJC Guideline Sentencing Education Committee es-
tablishes relationship with commission, 8:2

Guideline education plan, 12:2

Guidelines subject of testimony before House Sub-
committee on Criminal Justice, 9:1

Guidelines submitted to Congress, 5:3

Guidelines tested, 8:2

Holds final hearings on revised guidelines, 4:8

Issues supplementary report, 8:2

Public hearings on revised guidelines scheduled, 3:3

Regional hearings completed, 1:5

Seeks written comments on revised guidelines, 2:5

See also Caseloads

Stoorza, Edwin L. ("Larry")

Selected as assistant director for automation and
statistics at AO, 4:4

Subpoenas

Local rule on judicial approval of subpoenas of
lawyers upheld, 7:3

Summary Judgment

Assistant Attorney General R. K. Willard discusses,

10:9
FJC publishes Summary Judgment Practice in Three

District Courts (Cecil & Stienstra), 9:5
Second Circuit encourages summary judgment, 1:8

Summary Jury Trial

Attorney held in contempt for refusal to proceed with

summary jury trial, 7:4
See also Alternative Dispute Resolution

The Third Branch, Index to Volume 19

Summitt, Paul

Named deputy head of Legislative and Public Affairs
Office of the AO, 3:3

Supreme Court of the United States

Administrative assistant to Chief Justice named, 1:1
Jurisdiction of Supreme Court discussed by Chief

Justice W. H. Rehnquist in speech, 7:1
Reporter of decisions named, 1:3
See also Rehnquist, William H.

Tenth Circuit, U.S. Court of Appeals for

Automation in Tenth Circuit discussed by Chief Judge

W.J.Holloway,Jr., 11:7
Bankruptcy filings in Tenth Circuit discussed by Chief

Judge W. J. HoUoway, Jr., 11:7
Tenth Circuit caseload discussed by Chief Judge W. J.

Holloway, Jr., 11:6

Terrorism

State Department Legal Adviser A. D. Sofaer discusses,
2:8, 2:9

Tjoflat, Gerald B.

Testifies at Senate Judiciary Committee hearing on
Sentencing Guidelines, 12:2

Tort reform

ABA receives study commission report on tort reform,
4:2

Tort reform at the state level discussed by Assistant
Attorney General R. K. Willard, 10:6, 10:7

U.S. Attorneys

Solicitor general's review of appeals, 4:1
Work of U.S. attorneys reviewed by State Department
legal adviser, 2:6

U.S. Trustees

Chief Judge M. V. B. Bostetter, Jr., discusses, 7:7
Legislation on U.S. trustees, 3:2

University of Virginia Law School

Graduate program for judges, 12:3

Vaccine Injury Act — see National Childhood Vaccine
Injury Act

Wagner, Frank D.

Named Supreme Court reporter of decisions, 1:3

Wallace, Clifford

Work on Federal Courts Study Act discussed by Rep.
R. L. Mazzoli, 5:10

Willard, Richard K.

Interviewed, 10:1

Winter, Harrison L.

Interviewed, 8:1

BULLETIN OF THE FEDERAL COURTS

theTHT K Dbranch

First
Class
Mail

Index to Volume 19

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

Postage

fees pc

United S

Courl

Official Business

U.S. GOVERNMENT PRINTING OFFICE 1988-241-150-80011

-^0/1

BULLETIN OF THE FEDERAL COURTS

\\\J\

J)OCS

VOLUME 20
NUMBER 1
JANUARY 1988

'resident Reagan Signs Sentencing Refor^"^^ o^^entencing Guidelines
^ct. Criminal Fine Improvements Measures ^ 0dllenged in Suit

^ \^^y Public Defendevs

The following measures Dendine in program to certify interpreters and. ^^^ ^

The following measures pending in
ongress are of interest to the
diciary.

• The Sentencing Reform Act of
>87 (see The Third Branch, December
'87, at 1) was signed by the President
1 Dec. 7.

• The Criminal Fine Improvements
ct of 1987, which had been passed
r the House (see The Third Branch,
ecember 1987, at 5) was passed by
e Senate and signed by the Presi-
?nt on Dec. 11.

• Sen. Paul Simon (D-Ill.) and oth-
s have introduced S. 1867, the
3urt Interpreters Improvements Act

1987, to amend the Court Inter-
eters Act of 1978, 28 U.S. C. § 1827,
Kich required the AO to establish a

facilitate the use of interpreters iri^bi-
lingual proceedings and proceed^ings
involving the hearing impaired.
S. 1867 would require the develop-
ment of certification tests in at least
eight unspecified languages in addi-
tion to Spanish, for which a certifica-
tion test is already used. Spanish in-
terpretation in 1987 was required in
41,501 proceedings. Currently, the
other eight languages for which inter-
preters are most often requested (and
the number of proceedings for each)
in the federal courts are Mandarin
Chinese (366), Haitian Creole (354),
Arabic (277), Sicilian (253), Italian
(232), French (230), Thai (190), and
See LEGISLATION, page 2

►eath Penalty Habeas Corpus Caseload Prompts
hanges Under Revised Criminal Justice Act

An ongoing study of representation
the federal courts of defendants
ntenced to death, conducted by the
dicial Conference Committee on
efender Services, has led to the
loption of two amendments to the
iidelines for the Administration of the
■iminal Justice Act. The first amend-
ent provides that an attorney fur-
shed by a state or local public de-
nder organization, legal aid agency,
other private, nonprofit organiza-
)n may be appointed and compen-
ted under the CJA in federal death
■nalty habeas corpus cases when the
urt determines that such an ap-
)intment will provide the most
'ective representation. The second
lendment authorizes the compen-
tion of public and private organiza-
ms that provide legal consulting
rvices to counsel appointed in such
ses. The amendments to the
lideUnes were approved by the Judi-
il Conference in March of 1987.

The amendments resulted from the
Committee's review of the reports of
task forces established by the chief
judges of the courts of appeals. In
1986, the Committee (then called the
Committee to Implement the Crimi-
nal Justice Act) had asked the chief
judges to establish task forces to de-
velop information on the impact of the
projected influx of death penalty cases
reaching the postconviction stage in
federal courts. The reports generally
concluded that (1) the private bar has
neither the expertise nor the re-
sources to provide representation on a
pro bono basis, (2) the resources of
private nonprofit organizations are
dwindling and the attorneys they
have recruited are rapidly becoming
"burned-out," and (3) federal de-
fender organizations have neither the
staffing nor the resources to handle a
significant number of federal death
penalty habeas corpus cases.

See AMENDMENTS, page 3

The constitutionality of the sen-
tencing guidelines that took effect
Nov. 1 has been challenged in a law-
suit filed in the U.S. District Court for
the District of Columbia. Federal Defen-
ders of San Diego, Inc. v. U.S. Sentencing
Comm'n, No. 87-3161 (D.D.C. Nov.
23, 1987).

The suit was filed on behalf of two
defender organizafions. Federal De-
fenders of San Diego, Inc., a com-
munity defender group whose attor-
neys annually represent approx-
imately 6,000 individuals in the
Southern District of California, and
the Office of the Federal Public De-
fender for the Middle District of Ten-
nessee. Plainfiffs' attorneys are from
the Public Cihzen Litigation Group of
Washington, D.C., which filed the
lawsuit that challenged the legality of
the original Gramm-Rudman-Holl-
ings legislation.

The complaint alleges that Con-
gress made an excessive delegation of
legislafive authority to the Commis-
sion "since the Commission is re-
quired to make fundamental policy
choices about the appropriate range of
sentences for all federal criminal sen-
tences without sufficient guidance
See GUIDELINES, page 4

Inside . . .

Rules Committee Seeks

Comments on Proposed

Fed. R. Grim. P. 32 Changes .

.p. 2

Lee Heads New Division

At AO; Jones Heads

Magistrates Division

.p. 3

New Paper on

Judicial Sabbaticals

Available from FJC

.p. 7

theTHIKDbfanch

LEGISLATION, from page 1
Korean (154). The bill directs the AO
to provide guidelines to the courts on
the selection of otherwise qualified in-
terpreters when certified ones are not
available.

S. 1867 would require that judicial
proceedings where interpreters are
used be electronically sound-
recorded at the request of a party to
the case, and would expand the re-
quirement to use certified interpreters
to grand jury proceedings.

• S. 1630, a bill to enhance retire-
ment and survivor annuities for bank-
ruptcy judges and magistrates (see
The Third Branch, December 1987, at 1),
was ordered favorably reported by the
Senate Judiciary Committee.

• A bill extending the independent
counsel provisions of the Ethics in
Government Act for five years was
signed by the President Dec. 15. The
bill reflected compromises reached in
a House-Senate conference report.
No. 100-452, following Senate pas-
sage of a version that differed some-
what from H.R. 2939 as previously
passed by the House. The Senate's
version would have allowed the inde-
pendent counsel to broaden the scope
of his or her investigation only after
receiving approval from the attorney
general. The House version would
have permitted the special court that
appointed the counsel to authorize
such a broadened investigation. The
final bill incorporated the Senate
version.

THETHIRD BRANCH

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 1S2() H Street, N.W.,
Washington, DC 2(KX)S

Co-editors

Alice L. O'Donnell, Director, Division of Inter-
Judicial Affairs and Information Services,
Federal Judicial Center. Peter C. McCabe,
Assistant Director, Program Management,
Administrative Office of the U.S. Courts,

Rules Committee Seeks Comments on
Proposed Fed. R. Crim. R 32 Changes

The Advisory Committee on Criminal Rules of the Committee on Rules of
Practice and Procedure of the Judicial Conference of the United States plans to
revise rule 32 of the Federal Rules of Criminal Procedure. This revision is con-
templated in light of the sentencing guidelines and the Probation Committee's
proposed model local rule for guideline sentencing (circulated to all United States
chief circuit and district judges by Judge Gerald B. Tjoflat (11th Cir.) on Aug 28,
1987) The Advisory Committee, chaired by Judge Leland C. Nielsen (S.D. Cal.), is
interested in hearing before its next meeting. May 19-20, about any perceived
problems under the sentencing guidelines or under the Probation Committee's
proposed local rule that could be rectified by means of a rules change. Comments
may be sent to the Advisory Committee on Criminal Rules, Committee on Rules of
Practice and Procedure, AdministraHve Office of the U.S. Courts, Washington,
D.C. 20544.

• The House passed H.R. 3400,
amending the Hatch Act, the act that
restricts partisan political activity by
executive branch employees. The bill
has been referred to the Senate Gov-
ernmental Affairs Committee. (Al-
though the Hatch Act does not apply
to employees of the judiciary, a long-
standing resolution of the Judicial
Conference adopts its intent as bind-
ing on judicial employees.)

• H.R. 3461, introduced by Rep.
Jack Buechner (R-Mo.) would amend
Fed. R. Crim. P. 24(a) to require the
court to permit the defendant, or the
attorney representing him or her, and
the attorney for the government to ex-
amine prospective jurors; Rep.
Buechner's H.R. 3462 would amend
Fed. R. Civ. P. 47(a) to require the
court to permit each side to examine
prospective jurors. The bills are sim-
ilar to two Senate bills introduced by
Sen. Howell Heflin (D-Ala.) on which
hearings were held in 1987, S. 953 and
S. 954 (see The Third Branch, Sep-
tember 1987, at 5). The Judicial Con-
ference opposes the rules amend-
ments that would be made by Rep.
Buechner's and Sen. Heflin's bills.

• H.R. 3442, introduced by Rep. E.
Thomas Coleman (R-Mo.), would re-
quire groups and individuals receiv-
ing or spending more than $5,000 in
support of or opposition to a Supreme
Court nominee to report their ac-
tivities to the Clerk of the House.

• Senator Malcolm Wallop (R-

Wyo.) has introduced S. 1907, a com-
panion measure to H.R. 3546, to
amend the National Childhood Vac-
cine Injury Act of 1986 (see The Third
Branch, December 1987, at 4). Both the
House and Senate bills would create a
new Vaccine Compensation Board to
adjudicate claims for compensation,
in place of the 1986 act's provision that
the district courts administer the com-
pensation program.

• The Senate Judiciary Committee
ordered favorably reported S. 1134,
intended to deal with the so-called
"race to the courthouse" situation (see
The Third Branch, January 1987, at 7).
The House passed a similar measure,
H.R. 1162, in May of 1987.

• The Senate Judiciary Committee
ordered favorably reported, with an
amendment, S. 952, to provide the
Supreme Court with greater discre-
tion in selecting the cases it will
review.

• Sen. Edward M. Kennedy (D-
Mass.) and Sen. Orrin G. Hatch (R-
Utah) have introduced S. 1904, which
limits the use of lie detector tests by
employers. The bill forbids the use of
a polygraph in preemployment test-
ing of job applicants or in random
testing of employees. The bill would
not apply to governmental employers
nor in certain national defense and
security matters. It would permit the
use of a polygraph to investigate spe
cific economic losses, by testing em

See LEGISLATION, page I

BULLETIN OF THE
FEDERAL COURTS

Duane Lee Heads Court Admin. Division at AO;
fohn Thomas Jones Heads Magistrates Division

AO Director L. Ralph Mecham has
nnounced the appointment of
)uane R. Lee as Chief of the AO's new
^ourt Ad-
ministration
Mvision and
le appoint-
ment of John
homas
)nes to re-
laceMr. Lee
5 Chief of
le Magis-
ates Divi-
on.

Mr. Lee
as served as
hief of the ^'"""' ^- ^'^

[agistrates Division of the AO since
)82. He is a graduate of Dartmouth
ollege and George Washington Uni-
?rsity Law SchooL
Mr. Jones has served as Assistant
hief of the Magistrates Division
nee 1983. He previously served as
irector of Administration of the U.S.

^ENDMENTS, from page 1

A recent study of caseload and cost
ejections for federal habeas corpus
'ath penalty cases prepared at the
quest of the AO estimates that 304
■fendants sentenced to death will be
a position to file federal habeas cor-
is petitions in FY88 and 340 in FY89.
le study was conducted by the
'angenberg Group and sponsored

the Bar Informahon Program of the
5A Standing Committee on Legal
d and Indigent Defendants. The re-
rt addresses the serious problems
Jociated with the provision of coun-

in postconviction death penalty
ies in both state and federal courts
d urges cooperation among bar as-
riations, judges, federal public and
tnmunity defenders, law schools,
d organizations with experience in
^resenting indigents in death
nalty cases,
rhe task forces have also focussed

Army Judiciary and as Senior Judge of
the U.S. Army Court of Military Re-
view. Mr. Jones is a graduate of the
U.S. Military
Academy at
West Point
and of Co-
lumbia Uni-
versity Law
School.

The new
Court Ad-
ministration
Division was
created in
1987 (see The
Third Branch,
August 1987, ^''''" ^'"""«s Jones

at 1) to take over functions that had
previously been performed by the
Clerks Division, the Office of Court
Reporting and Interpreting Services,
the Office of Library and Legal Re-
search Services, and the Office of the
Special Assistant for Jury and Speedy
Trial Matters. ■

local attention on what could prove to
be a crisis situation in districts with
large numbers of state prisoners cur-
rently on death row. As a result, a
number of federal circuits and dis-
tricts are actively engaged in develop-
ing cooperative resource center pro-
grams, which would provide both
counsel in individual cases and guid-
ance and support to attorneys ap-
pointed in death penalty cases.

Given this interest and activity, the
AO recently proposed to conduct a
death penalty resource planning
meeting in Washington, D.C., to ad-
vise on the status of programs under
development throughout the federal
judiciary and to address common
problems and share ideas on how to
resolve them. A letter concerning the
proposed meeting was sent to all chief
judges of the courts of appeals, and it
is anticipated that details relating to
the meeting will be finalized in the

Calendar

Jan. 6-8 Workshop for Judges of the

Eighth and Tenth Circuits
Jan. 7-8 Judicial Conference Committee
on Administration of the Bank-
ruptcy System
Jan. 8-9 Judicial Conference Advisory

Committee on Bankruptcy Rules
Jan. 11-12 Judicial Conference Commit-
tee on Court Security
Jan. 11-13 Judicial Conference Commit-
tee on Judicial Improvements
Jan. 13-16 Judicial Conference Commit-
tee on Defender Services
Jan. 14-15 Judicial Conference Commit-
tee on Criminal Law and Probation
Administration
Jan. 18-19 Judicial Conference Commit-
tee on Space and Facilities
Jan. 19 Judicial Conference Committee

on Federal/State Jurisdiction
Jan. 22-23 Judicial Conference Commit-
tee on the Budget
Jan. 25-26 Judicial Conference Commit-
tee on Judicial Ethics
Jan. 25-27 Workshop for Judges of the
Ninth Circuit

near future.

Another recent Judicial Conference
action aimed at assisting the courts in
furnishing counsel in federal death
penalty cases is the establishment of a
special alternative maximum hourly
compensation rate for representation
in such cases in the four federal dis-
trict courts in California. The special
rate for these cases in California was
set at $75 per hour for in- and out-of-
court time, as opposed to the "reg-
ular" CJA hourly maximums of $60 for
in-court time and $40 for out-of-court
time. Judicial Conference authority to
establish alternative CJA rates was
provided only recentiy as part of the
Criminal Justice Act Revision of 1986,
which became effective in March
1987. The Committee and the Judicial
Conference are expected to entertain
additional alternative rate requests
from other districts in the coming
months. ■

THE

BPANCH

GUIDELINES, from page 1

from Congress"; that the delegation,
"even if not excessive, violates separa-
tion of pov^ers because the Sentencing
Commission is within the judicial, not
the executive branch of government";
and that "the mixed composition of
the Sentencing Commission, in com-
bination with the method of appoint-
ment and the method of removal of its
members, violates separation of

powers."

In addition, the complaint alleges
that the guidelines pose ethical prob-
lems for attorneys representing indi-
viduals who may be sentenced under
the guidelines. The plaintiffs estimate
that a substantial majority of their cli-
ents sentenced under the guidelines
will receive longer sentences than un-
der the prior sentencing system. The
plaintiffs claim that the Sixth Amend-
ment and the Code of Professional Re-

r^nsibm^y obUgate then, .0 ra.se the c«^M,. W.,W' "^^!!j^'^^::::::!':Z':il-^"lT:'^S

claim of unconstitutionality for all
their clients who would receive great-
er sentences under the guidelines
than under the prior system. This,
however, creates a potential conflict
with their representation of clients
who will receive lesser sentences than
they would have under the prior sen-
tencing system, plaintiffs contend.
The complaint states that the plaintiffs
might have to seek to withdraw from
representing clients who would be in-
jured by a ruling that the guidelines
are unconstitutional. Further, the
complaint states that those clients
whom the plaintiffs do represent will
be severely injured in the conduct of
their defenses, because the uncertain-
ty as to the guidelines' constitu-
tionality makes it difficult for attor-
neys to advise clients effectively and
for clients to decide how to plead and
to what offense.

The plaintiffs ask the court to de-
clare the guidelines unconstitutional
and to order the Commission to send
a copy of the court's judgment to all
courts of the United States and to the
U .S. Probation System; they also seek
costs and attorneys' fees. ■

instructions at the F]C seminar for newly appointed district judges in Washington;
D.C., in November of 1987.

(I eft to rwht) liuhcs lames H. Alcsia (N. / ). ///.), Richard }. Darouco (S.D.N. Y.), David
S. Doty (D. Mirin.), and Joseph l. Anderson, /r. (D.S.C.) confer during the sewmar.

Noteworthy

Judicial immunity held applicable
to judge's law clerk. The doctrine of
absolute judicial immunity is avail-
able to a judge's law clerk acting with-
in the scope of his or her duties, the
District Court for the Southern Dis-
trict of New York has ruled. Oliva v.
Heller, 670 F. Supp. 523 (S.D.N.Y.
1987). The court applied a "functional
analysis" of the type followed in other
cases construing judicial immunity
and held that "law clerks are simply
extensions of the judges at whose
pleasure they serve/' and therefore
"for purposes of absolute judicial im-
munity, judges and their law clerks
are as one," thus requiring the dis-
missal of plainhff's case.

Judicial immunity bars Bivens ac-
tions. The doctrine of judicial immu-
nity extends to cases alleging "direct
ronstituhonal torts" under Bivens v.
Six Unknown Named Agents, the Ninth
Zircuit has held. Mullis v. U.S. Bank-
■uptcy Court, 828 F.2d 1385 (9th Cir.
[987). Mullis sued numerous bank-
Taptcy court judges and clerks, seek-
ng monetary damages and declarato-
■y and injunctive relief following a
)ankruptcy judge's denial of his mo-
ion to withdraw his bankruptcy peti-
ion and dismiss the bankruptcy case,
rhe bankruptcy clerks allegedly filed
he bankruptcy petition without
)roviding information requested by
he petihoner's wife as to which chap-
er of the Bankruptcy Code would per-
nit the petitioner subsequently to
vithdraw or dismiss his pehtion. The
lerks also allegedly did not state that
hey could not give legal advice, but
ook the petition, saying it would be
iled under "the appropriate chapter."

The Ninth Circuit held the bank-
uptcy judges absolutely immune
rom a suit for damages, and held the
lerks and the bankruptcy trustee im-
fiune from damages under the doc-
rine of absolute quasi-judicial immu-
lity As for Mullis's claim that pro-
pective equitable relief was available
inder Pulliam v. Allen, the Ninth Cir-

BULLETINOFTHE
FEDERAL COURTS

cuit noted that a plaintiff seeking an
award of equitable relief under
Pi4lliaw must show that he or she has
an inadequate remedy at law and a
serious risk of irreparable harm.
"Where a federal official meets the
prerequisites for judicial or quasi-
judicial immunity from damages,
there will invariably be an adequate
remedy through either ordinary ap-
peals or by extraordinary writ," the
Ninth Circuit reasoned, holding that
the Pulliam exception to judicial im-
munity is not available in a Bivens
action.

State courts may not hear claims
that filing of bankruptcy petition con-
stitutes abuse of process. The Ninth
Circuit has held that a state court has
no power to decide that filing a bank-
ruptcy petition constitutes abuse of
process. Gonzales v. Parks, No. 86-594
(9th Cir. Oct. 20, 1987). A creditor filed
a suit in a California state court claim-
ing that the debtors' filing of a Chap-
ter 11 bankruptcy petition constituted
an abuse of process because it was
used solely to delay a foreclosure sale
following the debtors' default on an
obligation. A default judgment
against the debtors was entered in the
state court. The debtors sought relief
from the judgment and won a sum-
mary judgment from the bankruptcy
court that the state court judgment
was void as violative of the automatic
stay provision of the Bankruptcy
Code, 11 U.S. C. § 362(a). The district
court affirmed and the court of ap-
peals upheld the decision. Congress's
grant to the federal courts of exclusive
jurisdiction over bankruptcy matters
includes the implied power to protect
that grant by collaterally attacking
state court judgments that would
threaten the uniformity of federal
bankruptcy law, the appeals courts
said.

En banc opinion of 1st Cir. upholds
district court rule on subpoenas of
lawyers. The U.S. Court of Appeals
for the the First Circuit, sitting en
banc, has affirmed the district court's
authority to require by local rule of
court that federal prosecutors obtain
judicial approval before they sub-

Personnel

Nominations

Supreme Court of the U.S.
Anthony M. Kennedy, Associate Justice,

Supreme Court of the United

States, Nov. 24

District Judges
David A. Ezra, U.S. District Judge, D.

Hawaii, Nov. 18
Kenneth M. Hoyt, U.S. District Judge,

S.D. Tex., Nov. 24
Robert Roberto, Jr., U.S. District Judge,

E.D.N.Y., Nov 24
Rudy Lozano, U.S. District Judge, N.D.

Ind., Dec. 4

Confirmations

Sam R. Cummings, U.S. District Judge,

N.D. Tex., Dec. 8
Robert S. Gawthrop III, U.S. District

Judge, E.D. Pa., Dec. 8
Jerome Turner, U.S. District Judge, W.D.

Tenn., Dec. 8
Franklin S. Van Antwerpen, U.S. District

Judge, E.D. Pa., Dec. 8
Dean Whipple, U.S. District Judge, W.D.

Mo., Dec. 8
Alfred M. Wolin, U.S. District Judge,

D.N.J., Dec. 8

Bankruptcy Judges
Appointments

Stephen J. Covey, U.S. Bankruptcy Judge,

N.D. Okla., Nov. 2
Henry H. Dickinson, U.S. Bankruptcy

Judge, W.D. Ky., Nov 16

Magistrates (Full-time)
Appointments

Nancy Flora, U.S. Magistrate, D. Ariz.,

Dec. 1
John T. Reid, U.S. Magistrate, D. Kan.,

Dec. 1
Christine A. Noland, U.S. Magistrate,

M.D. La., Dec. 4
Robert Jake Johnston, U.S. Magistrate, D.

Nev., Dec. 14

poena lawyers to testify concerning
their clients before grand juries. U.S.
V Klubock, No. 86-1413 (1st Cir. Oct.
30, 1987).

A divided panel of the First Circuit

had previously affirmed the validity

of the local rule (see The Third Branch,

See NOTEWORTHY, page 6

•y.'y.<: .-:■

THE

D BRANCH

NOTEWORTHY, from page 5

July 1987, at 3). The District Court of
Massachusetts had adopted as one of
its own local rules an amendment to
the state ethics code promulgated by
the Massachusetts Supreme Judicial
Court. Federal prosecutors had
brought suit challenging the district
court rule as conflicting with Fed. R.
Crim. P. 17 and the Supremacy Clause
of the Constituhon.

Costs of incarceration and supervi-
sion. The sentencing guidelines
provide at § 5E4.2(i) that, in addition
to the fine called for in § 5E4.2(c), the
court shall impose a fine that is at least
sufficient to pay the costs to the gov-
ernment of any imprisonment, proba-
tion, or supervised release ordered.
The AO has provided the following
figures to chief probahon officers to be
used for this purpose: The average per
capita cost in a Bureau of Prisons facili-
ty for FY88 is expected to be $40.14
daily, $1,221 monthly, and $14,652
yearly for incarcerated offenders; and
$30.24 daily, $920 monthly, and
$11,038 yearly for offenders in half-
way houses. Supervision costs are
$2.74 daily, $83.33 monthly, and
$1,000 yearly.

Deaf juror qualified under Jury Se-
lection and Service Act. A deaf juror
for whom a qualified interpreter
translated speech into sign language
during voir dire, trial, and jury delib-
erations was a qualified juror, the
Tenth Cir. has held. U.S. v. Dempsey,
830 F2d 1094 (10th Cir. 1987).

American Judicature Society re-
ceives grant for education on judicial
ethics. The Henry Luce Foundation
has provided $100,000 to the Amer-
ican Judicature Society, which will be
used to conduct three regional forums
on judicial ethics over the next two
years. The three-day seminars for
groups of 20 judges from each of three
regions will be taught by judicial con-
duct commission members, judges,
and law professors.

Study of attorney discipline system
urged. The National Organization of
Bar Counsel (NOBC), in a committee

Positions Available

Clerk of Court, 6th Cir. Salary to
$72,500, commensurate with education
and experience. Minimum requirements
include 10 years' progressively responsi-
ble managerial or administrative experi-
ence (law practice may be substituted for
experience; degrees in public, business
or judicial administration, or law may be
partially substituted for the required ex-
perience). Bachelor's, postgraduate, or
law degrees desirable. Send resume with
cover letter by Feb. 10, 1987, to James A.
Higgins, Circuit Executive, 503 U.S.
Courthouse, Cincinnati, OH 45202. Posi-
tion will remain open unHl filled.

Judge, U.S. Bankruptcy Court, M.D.
Fla. (Orlando). New position; salary
$72,500. 14-year appointment. Persons
with law degrees whose character, expe-
rience, ability, and impartiality qualify
them to serve in the federal judiciary
may request application from Norman E.
Zoller, Circuit ExecuHve, U.S. Court of
Appeals, 56 Forsyth St., NW, Atlanta,
GA 30303. Application deadline; Jan. 15,
1988.

Clerk, U.S. Bankruptcy Court, N.D.
Ala. (Birmingham). Salary to $72,500.
Requires a minimum of 10 years' pro-
gressively responsible administrative ex-
perience in public service or business, at
least 3 in a position of substantial man-
agement responsibility; must have expe-
rience in personnel management; expe-

rience with computer systems helpful.
The achve prachce of law may be sub-
shtuted for the management or admin-
istrative experience requirements. Un-
dergraduate, postgraduate, and law de-
grees may be subshtuted for up to 3, 1, or
2 years, respectively, of the required gen-
eral experience. Suggested closing date
Jan. 25, 1988, but open until filled. Sub-
mit in quadruplicate a resume or SF171
to Chief Judge George S. Wright, US.
Bankruptcy Court, Northern District of
Alabama, PO. Box 3226, Tuscaloosa, AL
35403.

Chief Law Librarian, 3d Cir. Salary
$32,567^5,763 (or, if can qualify, to
$59,488). Under direction of circuit ex-
ecutive and policies established by a
committee of system users, manages all
aspects of law libraries created under 28
U.S.C. § 713(a) which serve the federal
appellate and trial courts of the circuit.
Formulates budget, administers, super-
vises law librarians, support staff, evalu-
ates library programs, does long-range
planning. Requirements; master's de-
gree in library or information science,
thorough knowledge of law library man-
agement concepts, and proven manage-
ment and administrative skills. Law de-
gree preferred. Submit resume by Jan.
29, 1988, to Circuit Executive, 21613 U.S.
Courthouse, 601 Market Street, Phila-
delphia, PA 19106.

EQUAL OPPORTUNITY EMPLOYERS

report entitled "Nationwide Evalua-
tion of Disciplinary Systems," is call-
ing for a national study of the attorney
discipline system, citing "significant
dissatisfaction" among members of
the bar and the general public with
how disciplinary matters are handled.
The NOBC, most members of which
are state officials who serve as counsel
to bar associations, contends that pub-
lic confidence in the legal profession
will be eroded unless steps are taken
to correct perceived inadequacies in
the system for attorney discipline.
The organization notes such problems
as inadequate (and in some cases non-
existent) procedures for reporting
ethical violations, and cites as es-
pecially important the need for re-
ciprocal arrangements for exchange of

information on disciplinary actions,
including expungement of records of
dismissed grievances.

The NOBC's challenge may prompt
action from the states. Already the
Virginia legislature has mandated that
as of July 1, 1988, all those newly ad-
mitted to the state's bar will be re-
quired to take a two-day course on
ethics.

A 1987 survey on lawyer discipline
systems published by the ABA Center
for Professional Responsibility indi-
cated that one complaint alleging law-
yer misconduct is filed for every 11
dues-paying lawyers in the United
States; however, only one in every 13
complaints results in a finding of
probable cause to believe the lawyer
engaged in misconduct. •

IheSource

The publications listed below may be of interest to
aders. Only those preceded by a checkmark are
Hiilable front the Center. When ordering copies,
ease refer to the document's author and title or
her description. Requests should be in writing,
companied by a self-addressed mailing label,
eferably franked (but do not send an envelope),
\d addressed to Federal Judicial Center,
formation Services, 1520 H Street, N.W.,
ashington, DC 20005.

Becker, Edward R., Patrick E.
igginbotham, and William K. Slate
"Why the Numbers Don't Add Up."
B.A. }., Oct. 1, 1987, p. 83.
Block, Michael K., and William M.
lodes. "The Impact of the Federal
■ntencing Guidelines." NIJ Reports,
■pt./Oct. 1987, at 2.

Judicial Sabbaticals Subject
Of New FJC Paper

A new staff paper. Judicial Sab-
baticals, is available from the Center.
The author. Professor Ira Robbins of
American University's Washington
College of Law, examines the use of
sabbaticals in business, industry,
law firms, and government, as well
as in academic and religious institu-
tions. He reviews the limited ways
in which sabbahcals have been ap-
plied to the judiciary and discusses
the desirability of extending their
use. Professor Robbins finds that
sabbaticals have been an effective
way of reducing "burn-out" for
those, like judges, in high-stress oc-
cupations, and he concludes that
they can be a valuable tool within
the judiciary to improve efficiency
and productivity, improve morale,
attract highly qualified individuals
to the bench, decrease attrition, and
put judges more in touch with the
communities whose interest they
serve.

Copies of the paper can be ob-
tained from Information Services,
1520 H St., N.W., Washington, DC
20005. Please send a self-addressed
mailing label. Do not include an
envelope.

Center for Public Resources. ADR
and the Courts: A Manual for Judges and
Lawyers. Butterworth, 1987.

Coffin, Frank M. "A Genealogy of
Founders." 39 University of Maine L.
Rni 247 (1987).

Connelly, Sean. "Congressional
Authority to Expand the Class of Per-
sons with Standing to Seek Judicial
Review of Agency Rulemaking." 39
Administrative L. Rev. 139 (1987).

Edwards, Harry T. "The Changing
Notion of 'Our Federalism'. " 33 Wayne
L. Rev 1015 (1987).

Federal Offenders in the United States
Courts 1985. Administrative Office of
the U.S. Courts.

Gilkey, Roderick. "Alternative Dis-
pute Resolution: Hazardous or Help-
ful?" 36 Emory L.J. 575 (1987).

Godbold, John C. "Pro Bono Repre-
sentation of Death Sentenced In-
mates." 42 Record of the Association of the
Bar of the City of New York 859 (1987).
Henry, Brian R. "The Criminal De-
fense Counsel's Concise Guide to
Prejudicial Communication During
Criminal Jury Trials." 23 Criminal Law
Bulletin 413 (1987).

Kaufman, Irving R. "The Public's
Right to Speedier Justice." New York
Times, Oct. 16, 1987, p. A39.

Kay, Susan L. "The Implications of
Prison Privatization on the Conduct of
Prison Litigation Under 42 U.S.C. Sec-
tion 1983." 40 Vanderbilt L. Rev. 867
(1987).

Landes, William M., and Richard
A. Posner. The Economic Structure of
Tort Law. Harvard University Press,
1987.

Mahoney, Barry. "Attacking Prob-
lems of Delay in Urban Trial Courts: A
Progress Report." 11 State Court Journal
No. 3 at 4 (Summer 1987).

Markey, Howard T. "A Judicial
Need for the 80's: Schooling injudicial
Ethics." 66 Nebraska L. Rev. 417 (1987).
Markey, Howard T "On Simplify-
ing Patent Trials." 116 F.R.D. 369
(1987).

Perazich, John. "Judicial Burnout: Is
It Searing Through D.C.?" 1 The Wash-
ington Lawyer, No. 7 (Sept./Oct. 1987)
at 29.

BULLETIN OF THE
FEDERAL COURTS

Perception and Reality: Survey on Se-
lected Provisions of the 1984 Amendments
to the Bankruptcy Code. American
Bankruptcy Institute, 1987.

Poulos, John W. "The Supreme
Court, Capital Punishment, and the
Substantive Criminal Law: The Rise
and Fall of Mandatory Capital Punish-
ment." 28 Arizona L. Rev 143 (1986).

i^Pregerson, Harry. "The Seven
Sins of Appellate Brief Writing and
Other Transgressions." 34 UCLA L.
Rev. 431 (1987).

Rehnquist, William H. "A Comment
on the Instruction of Constitutional
Law." 14 Pepperdine L. Rev. 563 (1987).

Rehnquist, William H. "The State of
the Legal Profession." New York State
Bar J., Oct. 1987, at 18.

Robbins, Ira P. "Privatization of Cor-
rections: Defining the Issues." 40 Van-
derbilt L. Rev. 813 (1987).

Ross, William G. "The Function,

Roles, and Duties of the Senate in the

See SOURCE, page 8

THE BOARD OF THE
FEDERAL JUDICIAL CENTER

Chairman

The Chief Justice
of the United States

Judge Anthony M. Kennedy

United States Court of Appeals

for the Ninth Circuit

Judge Alvin B. Rubin

United States Court of Appeals

for the Fifth Circuit

Judge Jose A. Cabranes

United States District Court

District of Connecticut
Judge William C. O'Kelley
United States District Court
Northern District of Georgia
Judge A. David Mazzone
United States District Court

District of Massachusetts

Judge Robert E. Ginsberg

United States Bankruptcy Court

Northern District of Illinois

L. Ralph Mecham, Director

Administrative Office of the

United States Courts

Federal judicial Center

Judge John C. Godbold, Director

Charles W. Nihan, Deputy Director

theTBIHDbranch

SOURCE, from page 7

Supreme Court Appointment Pro-
cess." 28 William & Mary L. Rev. 633
(1987).

Selvin, Jolly, and Larry Picus. The
Debate Over Jury Performance: Observa-
tions from a Recent Asbestos Case. Rand
Corporation, Institute for Civil Jus-
tice, 1987.

"Sentencing Commission Chair-
man Wilkins Answers Questions on
the Guidelines." NIJ Reports, Sept./
Oct. 1987, at 7.

Shanley, Michael C, and Mark A.
Peterson. Posttrial Adjustments to Jury
Awards. Rand Corporation, Institute
for Civil Justice, 1987.

Solovy, Jerold S., and Charles M.
Shaffer. Rule 11 and Other Sanctions:
New Issues in Federal Litigation. Practic-

ing Law Institute, 1987.

Stevens, John Paul. Address. 9 Uni-
versity of Hawaii L. Rev. 1 (1987).

Terrell, Timothy P. "Rights and
Wrongs in the Rush to Repose: On the
Jurisprudential Dangers of Alter-
native Dispute Resolution." 36 Emory
L.J 541 (1987).

Yamamoto, Eric K. "Case Manage-
ment and the Hawaii Courts: The
Evolving Role of the Managerial Judge
in Civil Litigation." 9 University of
Hawaii L. Rev 395 (1987).

LEGISLATION, from page 2

ployees who had access to the proper-
ty under investigation and who the
employer had reasonable suspicion to
believe were involved in the incident.
S. 1904 would establish a private

cause of action in employees and pro-
spective employees for violations of
the act. The House passed a bill that
would limit the use of lie detectors,
H.R. 1212, in November 1987.

• Rep. Don Sundquist (R-Tenn.) in-
troduced a joint resolution, H.J. Res.
400, to amend the Constitution to
provide that "notwithstanding section
2 of Article III . . . unless the Presi-
dent nominates and the Senate con-
sents to the continuance in office of a
judge . . . that judge may not hold
office for more than ten years after he
took office, after the Senate last con-
sented to his continuance in office, or
after the ratification of this article,
whichever last occurs." The proposed
constitutional amendment would not
apply to judges who have retired from
active judicial service. ■

BULLETIN OF THE FEDERAL COURTS

THETHUDmNOi

Vol. 20 No. 1 January 1988

The Federal Judicial Center

Dolley Madison House
1520 H Street, N.W.
Washington, DC 20005

Official Business

First
Class
Mail

Postage and

fees paid

United States

Courts

U.S. GOVERNMENT PRINTING OFFICE 198&-181-221-60010

L ^'-_r>

/^jP=f)=. BULLETIN OF THE FEDERAL COURTS ^-—-^ ■■'^^^<^'^ \^^ .1 !

rHETHIRDBRAN^H

VOLUME 20
NUMBER 2
FEBRUARY 1988

:ongress Cuts Judiciary's Fund Request by Five
'ercent. But Available Funds Greater Than in FY87

The FY88 appropriation for the
idicial branch of government is
1,329,934,000. After certain "carry-
ver" funds are added back, and the
vailability of certain fees is consid-
red, the judiciary will be approxi-
mately $50 million short in operating
mds from its FY88 requirement,
his represents about a 5 percent cut
I the judiciary's request but also
jpresents an increase in available
mding over FY87 levels of nearly
126 million.

The appropriation includes
17,357,000 for the Supreme Court;
1,250,535,000 for the courts of ap-
pals, district courts, and other serv-
es; $31,167,000 for the AO;
10,548,000 for the F[C; and separate
nounts for the U.S. Court of Ap-
pals for the Federal Circuit, U.S.
ourt of International Trade, and
.S. Sentencing Commission. The
jpropriation bill passed in the Sen-
e was approximately $50 million
lort of the judiciary's request, and
e bill passed in the House was ap-
•oximately $120 nullion short. As a

result of the budget summit between
the executive and legislative
branches, a $2.6 billion reduction was
to be spread among all domestic
appropriations. This required that ap-
proximately $50 million more had to
be cut from the judiciary appropria-
tion as its pro rata share of the reduc-
tion after the Senate and House had
reached initial agreement on the dif-
ferences in their bills.

The appropriations resolution in-
cludes a provision that fixes the sala-
ries of bankruptcy judges and sets the
ceiling on the salaries of magistrates
at 92% of the salary of a district
judge. The provision is effective Oct.
1, 1988. The enactment of the perma-
nent salary-setting mechanism was
endorsed by the Judicial Conference
of the United States and follows ef-
forts by the Committees on the Ad-
ministration of the Bankruptcy and
Magistrates Systems, the former
Court Administration Committee,
and the national associations repre-
senting the bankruptcy judges and
magistrates. ■

r.S. Sentencing Commission Adopts Technical
amendments; Local Court Rules in Effect

The United States Sentencing
ommission in December and early
nuary adopted a number of amend-
ents to its sentencing guidelines
id official conamentary, as distrib-
ed to the courts in April and Octo-
?r 1987. The Commission has mailed
le amendments to recipients of its
uidelines Manual, along with illus-
ations developed by the Commis-
on staff on the operation of the
ultiple count and criminal history
■ntencing guidelines.

The amendments took effect on
n. 15, 1988. They were adopted pur-
lant to the Commission's temporary
Jthority for "emergency guidelines

promulgation." Commission Chair-
man William W. Wilkins, Jr., said the
purpose of the amendments was "to
clarify and to make technical and
clerical corrections to the guidelines,
and to make them conform to re-
cently-enacted legislation."

Meanwhile, district courts around
the country are adopting local rules
of court and standing orders detailing
procedures under guideline sentenc-
ing. Many of the rules are variations
of the model local rule developed last
fall by the Judicial Conference Proba-
tion Committee, and thus typically
extend the 10-day statutory minimum
See GUIDELINES, page 3

Chief Justice's Year End
Report Reviews 1987
Judicial Developments

The Chief Justice in his 1987 Year
End Report described the revised
committee structure of the Judicial
Conference of the United States,
urged the swift passage of the judge-
ship bill supported by the Confer-
ence, again favored the establishment
of an intercircuit tribunal or national
court of app)eals, and called for "seri-
ous consideration" of the elimination
or curtailment of diversity jurisdic-
tion.

The Chief Justice reviewed the
work of the Special Committee to
Study the Judicial Conference and the
adoption of recommendations that
resulted in the restructuring of the
Conference's committee structure,
including the creation of new com-
mittees and the dissolution of five old

See YEAR END REPORT, page 6

Inside . . .

Court Technology Conference

set for April p.2

District Court (D.C.)

rule on sentencing p.2

FJC Summer Program

for Judges p.6

theTHIRDbranch

National Conference on
Court Technology to he
Held in Denver

The National Center for State Courts
and its Institute for Court Manage-
ment, the FJC, and the AO are cosfX)n-
sors with more than 20 other organiza-
tions of the second National Confer-
ence on Court Technology, to be held
Apr. 24-27 in Denver.

Over 60 speakers and presenters
will describe and explain specific as-
pects of technology used by courts, and
companies will exhibit their products
and services. It is expected that more
than 1,000 persons will attend.

Sessions will be devoted to such top-
ics as case management; management
of juries, records, and finances; court
automation; how computers can sup-
port judges; commercial software; and
court reporting. More than 55 sessions
in 16 topical areas will be presented at
least twice during the conference. It is
anticipated that each attendee will be
able to attend 10 to 15 program ses-
sions.

The deadline for early registration is
Feb. 15, 1988; for telephone registra-
tion, Apr. 1, 1988; and for mail-in regis-
tration, Apr. 15, 1988. The cost ranges
from $255 for members of sporworing
organizations(ifpaidbeforeFeb.l5),to
$325 for registrations postmarked after
Apr. 15 or completed on-site. Registra-
tion forms are available from the Insti-
tute for Court Management, 1331 17th
St., Suite 402, Denver, CO 80202 (tel.
(303) 293-3063). ■

theTHIRDbranch

Published monthly by the Administrative
Office of the U.S. Courts and the Federal
Judicial Center. Inquiries or changes of
address should be directed to 1 520 H Street,
N.W., Washington, DC 20005.

Co-ed itor8

Alice O'Donnell, Director, Division of In-
ter-Judicial Affairs, Federal Judicial Center.
Peter G. McCabc, Assistant Director, Pro-
gram Management, Administrative Office
of the U.S. Courts.
February 1988

OUTLINE OF LOCAL RULE 311
U.S. District Court for the District of Columbia

DAY:

20 day

time

frame

33
I

10 days or fewer

Adjudication of Guilt

Disclosure of Presentence Investigation
Report to Defendant, Defendant's attor-
ney, and Ass't U.S. Attorney

Defense Atty and Ass't U.S. Atty must present in
writing to U.S. Probation Officer objections to
material facts in Presentence Investigation Report

(When verbalized to Probation Officer, a written
statement of disputed facts must be confirmed in
writing within 48 hours)

Presentence Conference: U.S. Probation Officer,
Defense Atty., & Asst. U.S. Atty.

Disclosure of Revised Presentence Investigation
Report to Defendant , Defense Atty. and Ass't
U.S. Atty.

U.S. ProbationOf f icer sends to Court the Presen-
tence Investigation Report with required revi-
sions and certified addendum

Sentencing Hearing to resolve disputed

issues of fact

SENTENCING

BULLETIN OF THE
FEDERAL COURTS

'udge Charles R. Richey (D.D.C.) discusses
ipplication of the guidelines during the court-
■<ponsored program for the D.C. bar.

Calendar

Feb. 4 Judicial Conference Coirmrdttee

on Rules of Practice and Procedure
Feb. 8-12 Orientation Seminar for New

Probation/Pretrial Officers
Feb. 13-15 Workshop for Court

Interpreters
Feb. 17 Executive Committee of the

Judicial Conference
Feb. 17-19 Seminar for Magistrates of

the First, Second, Third, Fourth, and

D.C. Circuits
Feb. 21-26 Seminar for Newly

Appointed Bankruptcy Judges
-eb. 22-24 Metro District Court Clerks
^ and District Court Executives
-eb. 29-Mar. 3 Video Orientation

Seminar for Newly App>ointed

District Judges
-eb. 29-Mar. 4 Orientation Seminar for

New ProbaHon/Pretrial Officers
^ar. 15-16 Judicial Conference of the

United States

1987 Statistics on Grand and Petit Juror Service
Released by Administrative Office

The AO has published 1987 Grand percent of the total. The total number

and Petit Juror Service in United States
District Courts. According to the re-
port, the number of grand juries serv-
ing last year— 787— was virtually the
same as in 1986 — 792— but the num-
ber of sessions convened dropped
from 11,364 in 1986 to 11,011 in 1987,
and the average number of jurors per
session dropped from 19.7 to 19.6. In

of petit juror days rose by 4 percent
to 732,039. Overall, 31 percent of the
jurors present for jury selection were
selected while another 37 percent
were challenged. Slightly more than
32 percent were not selected or chal-
lenged, an improvement of 2 percent-
age points over last year. During
1987, a total of 56 districts improved

1987, 24,090 cases commenced by in- (i.e., reduced) their percentage of ju-

dictment, involving 38^22 defen-
dants. S.D.N.Y., E.D.N.Y., S.D. Fla.,
D. Mass., and CD. Cal. accounted for
29 percent of all the sessions con-
vened during 1987.

The statistics on petit juror usage
continued a five-year upward trend,
with the number of jury trial days

rors in the "not selected, serving, or
challenged" category. In an effort to
reduce the number of jurors in this
category, many courts have enacted
local rules allowing the assessment of
juror costs to parties who cancel a
jury trial at the last minute. Such a
rule discourages last-minute settle-

rising six percent from 41,945 in 1986 ments and results in fewer unused
to 44,511 in 1987. Civil trial days rose panels. In 1987, 47 districts assessed
12 percent and now account for 57 juror costs on at least one occasion.!

GUIDELINES, from page 1
for disclosure of the presentence re-
port prior to sentencing. The period
for such disclosure under the rules
generally ranges from 20 to 30 days
prior to the date set for sentencing.
Tj^ical of these rules is local rule 311
of the District Court for the District
of Columbia. (A chart showing the
time frames applicable under that
court's rule is reproduced on page 2.)
Guidelines education programs
continue. Several courts, having com-
pleted initial orientation programs
for judges, probation officers, and
other personnel of the district, are
now presenting programs for both
the trial and apf)ellate bars. For ex-
ample, the Eastern District of Penn-
sylvania, in conjunction with the Fed-
eral Courts Committee of the Phila-
delphia Bar Association, cosponsored
a program for trial attorneys, and the
Eastern District of New York spon-
sored a similar program. The U.S.
District Court and the U.S. Court of
Appeals for the District of Columbia
presented a program for panel attor-
neys and members of the bar of both

courts. That program included a
mock sentencing hearing presided
over by Judge Charles R. Richey
(D.D.C), in which prosecuting and

Judge Abner J. Mikva (D.C. Cir.) at the D.C.
courts' recent program on the guidelines.
defense attorneys examined the pro-
bation officer who had prepared the
presentence report. The seminar also
provided occasion to discuss the pro-
f)Osed court of appeals rule for han-
dling guidelines sentences. ■

February 1988

theTHIRDbranch

1:
1

Debt Collection, Habeas Corpus, Product Liability Pt7T3 COKTMP'T
Measures on Agenda for Congress's Second Session J- JILiXO Wi M i \i i:. i^

The following legislative items are
of interest to the judiciary.

• Senators Strom Thurmond (R-
S.C), Joseph Biden (D-Del.), and
Charles E. Grassley (R-Iowa) have
introduced S. 1961, to enhance the
remedies available to the United
States for collection of debts owed to
the federal government. The meas-
ure, which would create a compre-
hensive statutory scheme for the col-
lection of federal debt, represents "a
collaborative effort of the 94 U.S. At-
torneys across this country who per-
form the vast majority of debt collec-
tion litigation on behalf of the United
States," Sen. Thurmond noted. In
Sen. Grassley's words, "Under cur-
rent law, debts owed the Federal
Government must be collected under
a patchwork quilt of State laws where
the debtor is found." Debtors can
exempt more property from execu-
tion in some states than in others. The
bill's sponsors say this results in in-
equitable and inconsistent treatment
of federal debtors and impedes the
effective recovery of debts owed the
goverrmient (estimated at $68 billion).
• Sen. Thurmond introduced, at the
request of the Reagan administration.

the Criminal Justice Reform Act of
1987, S. 1970, containing titles ad-
dressing the exclusionary rule, habeas
corpus, and the death penalty. Title I
of the bill would codify the Supreme
Court's holding in U.S. v. Leon that
evidence obtained pursuant to a war-
rant that is later found to be defective
will not be excluded if in executing
the search the officer exhibited an
objectively reasonable belief that the
search was in conformity with the
Fourth Amendment. The bill would
also extend this exception to warrant-
less searches.

The habeas corpus provisions are
similar to an earlier habeas corpus
measure Sen. Thurmond had intro-
duced (see The Third Branch, April
1987, at 9).

The death penalty provisions
would provide procedures to permit
the death penalty for certain federal
offenses. Although various provisions
of the U.S. Code by their terms au-
thorize the death sentence for homi-
cide, treason, and espionage, the
death penalty has not been imposable
under those statutes in light of proce-
dural requirements set by subsequent
See LEGISLATION, page 7

Positions Available

Clerk of Court, D. Mass. Salary $63,135-
72,500. Previous announcement of position as
Qerk-Designate revised to announce position
as Qerk, to commence serving upon selection
or as soon as possible. Open until filled, but
filing by Feb. 15, 1988, preferred. Previous ap-
plicants vvrill be considered vwthout reapplica-
tion. Requirements: Bachelor's degree, mini-
mum 10 years' progressively responsible
administrative experience in public service or
business, including a minimum 3 years in
position of substantial management responsi-
bility. To apply, send letter with resume to
Hon. Frank H. Freedman, Chief Judge, U.S.
District Court, U.S. Court House, Post Office
Square, Boston MA 02109. Attn: Ms. Lillian Di
Blasi, Room 306.

Ass't Circuit Executive for Communica-
tions and Liaison, 9lh Cir. Salary $33,218-
60,683. Open immediately and until filled.
Serves as public information officer, secretary

to Executive Committee of drcviit; plans and
coordinates annual meeting for circuit judicial
conference. Requirements: Bachelor's degree
(advanced degree in law or court management
preferred); 4 years' general administrative
experience (specialized experience in press/
bar liaison, publications, meeting manage-
ment preferred). Travel required. Send letter,
resume, salary history, and writing samples to
Terry Nafisi, Ass't Circuit Exec, for Personnel
& Training, U.S. Court of Appeals, P.O. Box
42068, San Francisco, CA 94142-2068.

Senior Civil Motions Attorney, 9th Cir.
Salary $38,727-45,763; 2- to 5-year appoint-
ment. Legal and supervisory experience re-
quired; familiarity with federal practice pre-
ferred. Send resume, list of references, and
short analytical writing sample to Dinah L.
Shelton, Director, Office of Staff Attorneys,
U.S. Court of Appeals, P.O. Box 547, San Fran-
cisco, CA 94101.

EQUAL OPPORTUNITY EMPLOYERS

Circuit Judges
Nominations

David M. Ebel, U.S. Circuit Judge, 10th
Cir., Dec. 18

Emmett R. Cox, U.S. Circuit Judge, 11th
Cir., Dec. 19

Paul R. Michel, U.S. Circuit Judge, Fed,
Cir., Dec. 19

Confirmations

Jerry E. Smith, U.S. Circuit Judge, 5tV
Cir., Dec. 19

Appointments

William D. Hutchinson, U.S. Circui
Judge, 3d Cir., Oct. 19

Clarence A. Beam, U.S. Circuit Judge
8th Cir., Nov. 9

R. Kenton Musgrave, Judge, U.S. Coui
of International Trade, Nov. 13

Jerry E. Smith, U.S. Circuit Judge, 5t
Cir., Jan. 7

Deaths

Carl McGowan, U.S. Circuit Judge, D.(
Cir., Dec. 21

District Judges
Nominations

Jack T. Camp, Jr., U.S. District Judg
N.D. Ga., Dec. 18

Lowell A. Reed, U.S. District Judge, E.I
Pa., Dec.l8

Alfred C. Schmutzer, Jr., U.S. Distri
Judge, E.D. Tenn., Dec. 18

Vaughn R. Walker, U.S. District Judg
N.D. Cal., Dec. 18

Kimba M. Wood, U.S. District Judg
S.D.N.Y., Dec. 18

Stephen M. Reasoner, U.S. Distri
Judge, E.D. Ark., Dec. 19

Howard E. Levitt, U.S. District Judg
E.D.N.Y., Dec. 22

Confirmations

Kenneth Conboy, U.S. District Jud^
S.D.N.Y., Dec. 19

Rodney S. Webb, U.S. District Judf
D.N.D., Dec. 19

Appointments

David G. Larimer, U.S. District Judj
W.D.N.Y., Nov. 8

James A. Parker, U.S. District Judj
D.N.M., Nov. 13

Royce C. Lamberth, U.S. District Judj
See PERSONNEL, pag

February 1988

BULLETIN OF THE
FEDERAL COURTS

Noteworthy

Federal courts in New York seek advice
I assisting unrepresented litigants. A

immittee representing the four federal
stricts in the State of New York and the
cond Circuit Court of Appeals is consid-
ing ways to improve the administration
lawsuits in which one or more parties do
it have assistance of counsel. Pro se cases
nstitute approximately 15 percent of the
,000 federal civil cases filed in the federal
strict courts in New York each year,
hile each of the four trial courts and the
cond Circuit Court of Appeals have es-
jlished a small legal office to assist pro se
igants, a recent report of the New York
ite Bar Association indicated that the
represented — usually the poor and often
isoners — sometimes have not been able
obtain an adequate or expeditious hear-
;. Many of the pro se cases are filed by
isoners under civil rights laws, attacking
nditions of confinement. Because these
; generally poorly drafted, are often illeg-
e, and are sometimes duplicative, they
2sent difficult problems to the courts,
her prisoner cases are habeas corpus
titions attacking the conviction itself. In
dition, and especially in New York City,
;re are many pro se civil suits filed by
rsons appealing Social Security determi-
tions and by persor« with trademark or
tent claims.

Among the possible solutions under
:isideration by the committee are:
•publicizing a "scorecard" of law firms
i attorneys who have been especially
Ipful and effective in assisting unrepre-
ited litigants (and perhaps those who
ve not);

•establishing a computer hook-up
long the four district courts, to help iden-
' repetitive or frivolous litigation;
•obtaining certification of New York's
son grievance mechanisms under 42
5.C. § 1997(e);

•requiring lawyers to take a minimum
mber of pro se cases as a condition of
itinuing membership in the bar of a dis-
1 court;

• recom mending statewide adoption of a
^•N.Y. rule that requires prisoners to pay
artial filing fee based on their prison cash
ount (outside N.D.N.Y., the fee is gener-
r waived entirely for prisoners);
•improving the information and forms
•vided to pro se litigants;

See NOTEWORTHY, page 8

Chief Probation and Pretrial Services
Officers Attend FJC Leadership Seminar

A three-day leadership seminar for
17 new chief probation and pretrial
services officers was held at the FJC in
December 1987. The seminar helped
the new chiefs to identify the ingredi-
ents of leadership and different lead-
ership styles, to find ways to diagnose
their districts' various problems,
needs, and strengths, and to establish
a dialogue and ongoing support sys-
tem among themselves.

The faculty for the seminar con-
sisted of David Leathery, Chief, Pro-
bation and Pretrial Programs of the
FJC; John Pagan, Chief of Staff of the

Lieutenant Governor's Offices of the
State of Colorado; and Robert "Bo"
Ault, Deputy Chief U.S. Probation
Officer of the Eastern District of Vir-
ginia. In addition to lectures and
discussions, the seminar included
small team sessions, in which partici-
pants analyzed problem situations,
identified management tools for use
in various situations, and planned ap-
plication of the techniques presented.
The AO provided the new chief
probation and pretrial officers with a
two-day orientation program during
their stay in Washington. _

(Left to right) Chief Probation Officer WilliamR. Sayes (W.D. La.), Chief Pretrial Services Officer
R. James Behm(E.D. Mo.), and Chief Probation Officer Robert L. Brent (W.D. Mich.) during the
Federal Judicial Center seminar held in December 1987 in Washington, D.C.

Eleventh Circuit Upholds House Committee's Access
To Grand Jury Materials in Hastings Case

The Eleventh Circuit has affirmed a
district court's order that the House Judi-
ciary Committee was entitled to access to
grand jury materials to use in the com-
mittee's impeachment inquiry in the case
of Judge Alcee Hastings (S.D. Fla.). In re
Request for Access to Grand Jury Materials
Grand Jury No. 81-1 (11th Cir. Nov. 24,
1987). Judge Hastings had argued that
disclosure created the potential for abuse
of power by making the executive
branch, and perhaps the judicial branch,
an arm of the legislative branch in the im-
peachment process.

The appeals court stated that under a

proper conception of separation of
powers, principles of comity require a
degree of cooperation between the
legislative and judicial branches, and that
"the grand jury as an institution has one
foot in the judicial branch and the other in
the executive," necessitating "a high
degree of cooperation ... if the system is
to function."

The Judicial Conference certified to the
House in March of 1987 its determination
that consideration of the impeachment of
Judge Hastings may be warranted (see
The Third Branch, April 1987, at 5 and
November 1987, at 9). _

February 1988

theTHIRDbranch

FJC Summer Program
for Judges

Budget reductions preclude a
1988 summer judicial seminar
such as those held in recent years
at the Universities of Wisconsin
and California.

Depending on the outcome of
subsequent budget action, the
Center may be able to fund a
small number of judges at the
Harvard Law School's Summer
Program of Instruction for Law-
yers. The 1988 program begins
June 12 and ends June 25. Many
of the courses last only one week,
and if there is Center support,
such support may be restricted to
one week.

Article III judges who wish to
be considered for support should
so indicate by letter to Russell
Wheeler, Director of Special
Educational Services at the Cen-
ter. Letters should be received by
Apr. 18.

Selection will be by random
drawing if applications exceed
available funds. The Center may
not know whether funds will be
available until well into the
spring, perhaps as late as May or
June.

YEAR END REPORT, from page 1

committees, some of whose functions
were consolidated into existing or
newly created committees. The re-
structuring provides "greater oppor-
tunity for conference committee serv-
ice than ever before," the Chief Jus-
tice said, pointing out that 99 of the
205 Article III judges now serving on
Conference committees are new ap-
pointees, and that nearly twice as
many bankruptcy judges and magis-
trates are represented on conference
committees as were previously repre-
sented. He noted the strengthening of
the Conference's Executive Commit-
tee, chaired by Chief Judge Wilfred
Fcinbcrg (2d Cir.) and the formation
of the Legislative Liaison Group,
which will work closely with the Ex-
ecutive Committee in monitoring leg-
islation. The group, chaired by Chief
February 1988

Judge Charles Clark (5th Cir.), will
alert the Executive Conunittee to act
between Conference sessions to en-
sure that the views of the Conference
are made known to Congress in a
timely and effective manner.

The report noted AO Director L.
Ralph Mecham's efforts to provide
greater service to the judiciary, in-
cluding initiatives to meet the
judiciary's space and facilities re-
quirements, to promote automation,
and to improve comnununications
with the legislative branch and within
the judicial branch.

During 1987, the report said, the
Supreme Court acted on 4,340 cases,
the courts of appeals on 36,010 cases,
and the district courts on 279,087
cases (238,000 civil and 41,087 crimi-
nal). The report saw a likelihood that
the workload of the courts would
become even heavier, "not due to an
influx of new cases but rather to a
need to devote more judicial time to
the existing volume of criminal
cases," as district judges, magistrates,
and probation officers adapt to the
new system of guideline sentencing
and given that "appellate review of
sentencing has now become a real-
ity."

The Chief Justice pointed to the
presidential recommendation of pay
raises for the federal judiciary, which
went into effect on Feb. 5, 1987, and
stated that while the judiciary no
doubt welcomes this action, "a wide
gap remains between federal judicial
salaries and the income of established
and highly skilled members of the
private bar." He reiterated his belief
"that the present level of compensa-
tion for federal judges may not be
high enough to attract ... 'the first-
rate talent that has always been a
hallmark of the federal bench.'"

The report summarizes a number
of items of interest to the judiciary
that have become public law or are in
the legislative pipeline for considera-
tion in 1988. The report states that,
based on meetings he has had with
Rep. Robert W. Kastenmeier (D-Wis.)
and Sen. Howell Heflin (D-Ala.), the

Chief Justice has "high expectatior
for a renewed legislative response t
the needs of the judiciary and for a
open communications flow betwec
our branches." The judiciary "shoul
also be grateful for the support give
the judicary by the Appropriatioi
Conunittees in the face of substanti
cutbacks in the federal budget," tl
report says.

Observing that the judiciary
"presently operating with 49 vaca
cies nationally among Article
judgeships, including the vacancy (
the Supreme Court," the Chief Justi
praised "the steadfast efforts of o
senior judges."

Among the legislative highlights

the past year that the Chief Justi

singled out were the new parity

U.S. magistrates with bankrupt

judges in their current retiremc

arrangements; $66 million in ad(

tional appropriations for the judicia

for FY87, permitting the funding

the 52 new bankruptcy judge pc

tions authorized in 1986 and pern

ting court staffing levels to

brought close to the judiciary's nee

improvements to the Sentencing 1

form Act of 1984, easing the trar

tion into the new sentencing gui(

lines system and expanding the di

aftercare program to cover psychi

ric aftercare; passage of the "race

the courthouse" bill; amendment

the National Childhood Vaccine

jury Act of 1986 to remove the pr

essing of this type of claim from i

tide III courts to the U.S. Clai

Court; and the final continuing re

lution for FY88, which included

provision raising the salary of bai

ruptcy judges and magistrates to

percent of the rate of district jud^

effective Oct. 1, 1988.

The Chief Justice praised the se
ices of retired Supreme Court Jusi
Lewis F. Powell, Jr., and retired 1
Director A. Leo Levin, and welcon
Judge John C. Godbold as "an a
successor" to direct the FJC.

Copies of the Chief Justice's Y
End Report are available from
FJC's Information Services Office.

BULLETIN OF THE
FEDERAL COURTS

[ISONNEL, from page 4

).C., Nov. 16

William L. Standish, U.S. District Judge,

D. Pa., Nov. 30

William L. Dwyer, U.S. District Judge,

D. Wash., Dec. 1

Sam R. Cummings, U.S. District Judge,

). Tex., Dec. 11

Franklin S. Van Antwrerpen, U.S. Dis-

tJudge,E.D. Pa., Dec. 21

Rodney S. Webb, U.S. District Judge,

J.D., Dec. 23

Dean Whipple, U.S. District Judge, W.D.

., Dec. 29

Robert S. Gawthrop III, U.S. District

ge, E.D. Pa., Jan. 4

imest C. Torres, U.S. District Judge,

;.I.,Jan. 19

erome Turner, U.S. District Judge, W.D.

in., Jan. 19

nations

ohn F. Gerry, Chief Judge, D.N.J ., Oct. 1

.ucius Desha Bunton III, Chief Judge,

). Tex., Nov. 2

.yle E. Strom, Chief Judge, D. Neb.,

Villiam C. O'Kelley, N.D. Ga., Jan. 1,

ignation

Villiam S. Sessions, Chief Judge, W.D.

.,Nov. 1

ior Status

lenry Bramwell, U.S. District Judge,

N.Y., Oct. 1

Harkson S. Fisher, U.S. District Judge,

•J., Oct. 1

amuel Conti, U.S. District Judge, N.D.

, Nov. 1

ths

dward M. Curran, U.S. District Judge,

C, Jan. 10

oss N. Steriing, U.S. District Judge,

Tex., Jan. 14

dward Weinfeld, U.S. District Judee,

^J.Y.,Jan.l7

:isTRATEs (Full-time)

ointments

>el B. Rosen, U.S. Magistrate, D.N.J.,

)hn F. Simon, U.S. Magistrate, W.D.
Dec. 15

rement

ephen W. Karr, U.S. Magistrate, W.D.
»., Dec. 31

LEGISLATION, from page 4
Supreme Court decisions, except un-
der a later statute involving a death
in the course of an aircraft hijacking.
A bill similar to S. 1970 has been in-
troduced in the House as H.R. 3777
by Rep. George W. Gekas (R-Pa.) and
others.

• Rep. William H. Gray III (D-Pa.)
has introduced H.R. 3726, to enable
federal judges to take senior status if
they are 60 years of age and have at
least 20 years of service. 28 U.S.C.
§371(b) currently provides that a fed-
eral judge may retire from active
service with election of senior status
if the judge's attained age and years
of service total 80, provided the judge
is at least 65 years of age.

• Sen. Howell Heflin (D-Ala.) and
Sen. Charles E. Grassley (R-Iowa)
have introduced S. 1996, to amend
district court jurisdiction with respect
to certain actions involving citizens of
the U.S. and foreign persons; the bill
addresses problems that have arisen
in international product liability suits.
A similar bill has been introduced in
the House as H.R. 3662 by Rep. Dan
Glickman (D-Kan.).

Section one of S. 1996 provides
federal district court jurisdiction and
facilitates service of process in suits
brought by U.S. citizens against for-
eign manufacturers, where the for-
eign citizen knew or should have
known that the product would be
sold or used in the U.S. The measure
is required by the difficulties in as-
serting jurisdiction under some state
"long-arm" statutes. Sen. Heflin says.
Section two of the bill would amend
28 U.S.C. § 1441, the removal statute,
to provide that any civil action
brought in a state court by a foreign
citizen or subject against a U.S. citi-
zen for a product-related injury sus-
tained outside of the U.S. may be
removed by the defendant to the U.S.
district court. This would include
cases filed in the state of citizenship
of one of the defendants (presently
not removable). Section three of the
bill addresses the problem of "forum
shopping" by foreign plaintiffs. Un-

der current law, the federal court in a
diversity case applies the choice-of-
law rules of the state in which it is
located. Since not all states apply the
rule that the law of the place of injury
should govern, foreign plaintiffs seek
jurisdictions that will apply more lib-
eral tort standards than those in their
own countries. S. 1996 would require
federal courts to apply the law of the
place of injury in all liability and
damage issues in these actions.

• The "race to the courthouse" bill,
H.R. 1162 (see The Third Branch, Janu-
ary 1988, at 2) was signed by the
President Jan. 8, 1988, as Pub. L. 100-
236. The measure provides for the
random selection of the circuit to hear
appeals from agency decisions in
cases where appeals are filed in more
than one circuit.

• Product liability law reform is
being considered by committees in
both the House and the Senate. The
Commerce, Consumer Protection,
and Competitiveness Subcommittee
of the House Energy and Commerce
Committee in December approved a
measure based on H.R. 1115, spon-
sored by Rep. Bill Richardson (D-
N.M.), which would set a federal
product liability standard.

S. 666 was introduced last year by
Sen. Robert W. Kasten, Jr. (R-Wis.),
who has urged a uniform national
standard of liability for product
manufacturers and sellers. Sen.
Kasten has termed the present system
"a patchwork of product liability
laws developed by state judges who
have been basically legislaHng policy
in this area for two decades." S. 666
includes uniform fault standards for
product sellers, restrictions on the
imposition of punitive damages, a
workers' compensation offset to
avoid double recoveries, reform of
the doctrine of joint and several liabil-
ity with respect to noneconomic
damages, and an expedited settle-
ment procedure.

Consideration of the product liabil-
ity measures by the full House and

See LEGISLATION, page 8

February 1988

theTHIRDbranch

LEGISLATION, from page 7
Senate could come in early 1988.

• Sen. Daniel P. Moynihan (D-N.Y.)
has introduced S. 1934, to authorize
the Architect of the Capitol to con-
tract for the design and construction
of a new office building for the fed-
eral judiciary. The legislation imple-
ments the findings of a report by the
Architect of the Capitol and the Sec-
retary of Transportation that was
endorsed by Chief Justice Rehnquist.
The office building would accommo-
date employees of the AO, the FJC,
and other judicial branch support
offices, and provide expansion space
for rerired Justices and other needs of
the Supreme Court. The building, to
be located near Union Station in
Washington, would be built by a pri-
vate developer but would become the
property of the federal government
after a 30-year lease period.

• The Budget Reconciliation Act of

1987 passed by Congress in Decem-
ber contained a subtitle called the
"Vaccine Compensation Amend-
ments of 1987," modifying the com-
pensation and court jurisdiction pro-
visions of the National Childhood
Vaccine Injury Act of 1986. Petitions
for compensation under the act are
now to be filed with the United States
Claims Court rather than with the
district courts. Compensation for in-
juries and deaths associated with vac-
cines given prior to the effective date
of the amendments will be made
from a trust fund established under
the Internal Revenue Code and au-
thorized in the amount of $80 million
per fiscal year for FY89 through FY92.
Compensation for injuries and deaths
associated with vaccines given after
the effective date of the amendments
will be subject to a ceiling on the
number of awards; the ceiling is set at
150 awards per year for each of the

four years after the effective date
the amendments.

NOTEWORTHY, from page 5

•clarifying pleading requirements i
the conditions under which the court n
summarily dismiss frivolous claims.

The Pro Se Committee was establisl
because of Chief Judge Wilfred Feinbei
concern about the service of the bar and
courts to pro se litigants. Its chairma
Judge George C. Pratt (2d Cir.), and
members are Chief Judge John T. Cu
(W.D.N.Y.), Chief Judge Howard G. U
son (N.D.N.Y.), Judge Leonard B. S
(S.D.N.Y.), and Robert C. Heinem;
Clerk (E.D.N.Y.).

The committee seeks advice on poss
steps to improve the quality of justice
litigants who represent themselves an
increase the efficiency with which the
eral courts handle these cases. It in^
attorneys, judges, and the public to sul
suggestions to Hon. George C. Pratt, CI
man. Pro Se Committee, Long IsJ
Courthouse, Uruondale, NY 11553.

BULLETIN OF THE FEDERAL COURTS

theTHIRDbranch

First
Class
Mail

Vol.20 No. 2 February 1988

The Federal Judicial Center

1520 H Street, N.W.
Washington, DC 20005

Postage c

fees pai

United St

Court;

U.S. GOVERNMENT PRINTING OFFICE 1 988-201 -733-«0000
February 1988

BULLETIN OF THE FEDERAL COURTS

rHETHIRDBRANCH

EflYTi im.

VOLUME 20
NUMBER 3
MARCH 1988

'sentencing Guidelines Ruled Invalid in Two
Zases in Southern District of California

The sentencing guidelines promul-
ated by the U.S. Sentencing Commis-
ion were ruled invalid in two recent
ases in the U.S. District Court for the
outhern District of California. The
ourt in U.S. v. Arnold held that the
lacement of the Commission in the
idicial branch and the inclusion of
Lrticle III judges on the Commission
iolate the constitutional separation of
owers doctrine. U.S. v. Arnold, Cr. No.
7-1279-B (S.D. Cal. Feb. 18, 1988). This
masoning was adopted in an order in
IS. V. Manley, No. 87-1290-R-CRIM
;.D. Cal. Feb. 18, 1988). In a related
evelopment, a civil suit challenging
le guidelines has been dismissed for
ck of standing by the U.S. District
ourt for the District of Columbia.
^deral Defenders of San Diego, Inc. v.
'.S. Sentencing Comm'n, No. 87-3181
).D.C. Feb. 22, 1988).

The decision in Arnold was on a pre-
trial motion in a case in which the two
defendants pled not guilty. The motion
was argued before seven other judges in
the district, sitting in their individual
capacities, who had similar issues
pending in cases before them.

The court in Arnold found the issues
ripe for decision even though the defen-
dants might be acquitted at trial. The
court found that the need for a determi-
nation was substantial and, looking
beyond the two defendants before the
court, "the Guidelines ... are mathe-
matically certain to be immediately
applicable in a finite number of cases,"
and the public interest would be well
served by a prompt resolution of the

Chief Justice Speaks
On State-Federal
Relations

Chief Justice Rehnquist spoke about
relations between the Supreme Court
of the United States and the state su-
preme courts at the midyear meeting of
the Conference of Chief Justices held in
Williamsburg, Va., on Jan. 27, 1988.
His remarks concerned three areas of
relations between state and federal
courts.

He first discussed the circum-
stances under which the Supreme
Court will review state court decisions
that arguably are premised on both
federal and state grounds. Michigan v.
Long, 463 U.S. 1032 (1983), held that in
the absence of a plain statement that
the holding below rested on an ade-

udge Elmo B. Hunter (W.D. Mo.) Receiv^#
)istinguished Service to Justice Award

issue of the guidelines' consHtutional- ^/tjuate and independent state ground,

ity. Moreover, "the issues now befoi|f'" the presumption would be in favor of

this court are purely legal and nea^^ the Supreme Court's taking jurisdic-

See SENTENCINGj^a^ tion and deciding the case on federal

A^^^^^^nsWi^^nal grounds. The Supreme

■;:^\low^, chose this course over other

• . £\^ '' o^j(t6rhs, particularly the option of

Judge Elmo B. Hunter (W.D. Mo.)
is been selected as the recipient of the
iward J. Devitt Distinguished Serv-
e to Justice Award.
Judge Hunter was appointed to the
deral bench in 1965, and served as
lief judge of the Western District of
[issouri in 1980. He served on the
idicial Conference Committee on
ourt Administration beginning in
*69, serving as chairman of its Sub-
)mmittee on Judicial Improvements
om 1976 to 1978, and became the full
>mmittee's chairman in 1978.
Judge Hunter was born in Missouri
id received his A.B. and J.D. degrees
om the University of Missouri. Prior
his appointment as a federal judge,
t was a senior assistant city counselor
Kansas City, a Missouri circuit
dge, and a Missouri appellate judge.

He IS a ig^
mer ^l^ir-
man or the
board and
president of
the Ameri-
can Judica-
ture Soci-
ety.

The
Devitt
]udge Elmo B. Hunter award has

been presented annually by West Pub-
lishing Co. since 1982 in recognition of
extraordinary service to justice by a
federal judge. The selection commit-
tee for this year's award consisted of
Supreme Court Justice William J.
Brennan, Jr., Chief Judge Charles
Clark (5th Cir.), and Judge Edward J.
Devitt (D. Minn.). ■

landing the case back to the Su-
'reme Court of Michigan with the at-
tendant delay and inconvenience that
such an approach would cause," the
Chief JusHce pointed out.

He disagreed with crirics of Long
who believe that the case "reflects
hostility to the resurgence of interest in
thedevelopmentof state constitutional

See CHIEF JUSTICE, page 7

Inside . . .

Judiciary's budget request.
Omnibus Court Reform bill
before Congress p.2

7th Cir. Overturns Mandatory
Summary Jury Trial Case . . p.3

ABA Midyear Meeting .... p.5

theTHIRDbranch
Legislation

The following measures in Congress
are of interest to the judiciary.

• The Senate passed S. 557, the Civil
Rights Restoration Act, a bill in-
tended to overrule the result reached
in the Supreme Court's Grove City
College case (see The Third Branch,
May 1987, at 12).

• The Senate Judiciary Committee
held an oversight hearing on the judi-
cial selection process, with particular
emphasis upon the Reagan admin-
istration's performance in nominating
women and minorities as judicial ap-
pointees. Assistant Attorney General
Stephen J. Markman of the Justice
Department's Office of Legal Policy
represented the administration at the
hearing.

• The House Appropriations Com-
mittee's Subcommittee on Commerce,
Justice, State, the Judiciary, and Re-
lated Agencies held a hearing on
F\'89 appropriations under its juris-
dicHon. Chief Judge Charles Clark
(5th Cir.), Judge Richard S. Arnold
(8th Cir.), and Judge Thomas J.
Meskill (2d Cir.) testified on behalf of
the Judicial Conference. Judge John
C. Godbold, FJC Director, and L.
Ralph Mecham, AO Director, testified
about their agencies' budget requests.

• The Senate Judiciary Committee's
Subcommittee on Courts and Admin-
istrative Practice, chaired by Senator
Howell Heflin (D-Ala.), approved S.
951, a bill that would establish a

BULLETIN OF THE FEDERAL COURTS

Federal Courts Study Commission
(see The Third Branch, August 1987, at
5).

• The House Judiciary Committee's
Subcommittee on Courts, Civil Liber-
ties, and the Administration of Justice
held a hearing on H.R. 3152, an omni-

House has previously passed H.R.
34(X) (see The Third Branch, January
1988, at 2). Although the Hatch Act is
not applicable by its terms to the judi-
ciary, a long-standing resolution of
the Judicial Conference adopted the
acfs intent as binding on judicial

AO Director L. Ralph Mecham listens as Chief Judge Charles Clark (5th Cir.) Judge Richard .
Arnold (8th Cir.), Chairman of the Judicial Conference Budget Committee, and Judge Thomas^
Meskill (2d Cir.) testify on the judiciary's FY89 budget rec^uest before a subcommittee of th
House Appropriations Committee.

bus court reform bill (see The Third
Branch, October 1987, at 1). Judge
Abner J. Mikva (D.C. Cir.) and Judge
Patrick Higginbotham (5th Cir.) testi-
fied in their individual capacities at
the hearing.

• The Senate Governmental Affairs
Committee held a hearing on H.R.
3400, a bill to amend the Hatch Act to
permit more partisan political activity
by executive branch employees. The

branch employees.

• Rep. Tommy F. Robinson (D-Ark
introduced H.R. 3902, to specify th;
in federal civil suits alleging thi
overcrowded conditions in a sta
penal facility violate the Eight
Amendment, the plaintiff shall be r
quired to prove the allegation I
clear and convincing evidence.
• Rep. Hamilton Fish, Jr. (R-N.^
See LEGISLATION, page

theTHIRDbranch

Published monthly by the Administrative
Office of the U.S. Courts and the Federal
Judicial Center. Inquiries or changes of
address should be directed to 1 520 H Street,
N.W., Washington, DC 20005.

Co-editors
Alice L. O'Donnell, Director, Division of
Intcr-Judicial Affairs and Information
Services, Federal Judicial Center. Peter C.
McCabc, Assistant Director, Program
Management, Administrative Office of the
U.S. Courts.

March 1988

1988 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

Sept. 26-28 Harwich Port, Mass.

Sept. 8-11 Hershey, Pa.

Sept. 18-20 Princeton, N.J.

June 30-July 2 White Sulphur Springs, W. Va.

Apr. 17-20 Jackson, Miss.

July 6-9 Hot Springs, Va.

May 8-10 Indianapolis, Ind.

July 14-17 St. Louis, Mo.

Aug. 16-19 Coeur d'Alene, Ida.

July 6-8 Jackson Lake, Wyo.

May 1-4 Panama City, Fla.

May 22-24 Williamsburg, Va.

May 13 Washington, D.C.

BULLETIN OF THE jrH
FEDERAL COURTS ^^

Seventh Cir. Holds District Court Was Without
Authority to Require Summary Jury Trial

The Seventh Circuit has held that a
district court does not have the author-
ity under Fed. R. Civ. P. 16 to require
parties to submit to a mandatory non-
binding summary jury trial. Strandell v.
Jackson County, No. 87-1559 (7th Cir.
Jan. 21, 1988). In a summary jury trial,
which generally lasts one day, attor-
neys summarize their case before a
jury, which renders a nonbinding ver-
dict. Litigants may be motivated to set-
tle based on their estimate of how an
actual jury may respond to their evi-
dence.

The district court had estimated that
trial of the plaintiff's civil rights action
would last five to six weeks. Faced with
a crowded docket, including a heavy
criminal caseload subject to the Speedy
Trial Act, the court had ordered a non-
binding summary jury trial. Itbased the
order on a 1984 resolution of the Judi-
cial Conference of the United States
endorsing summary jury trials; on Fed.
R. Civ. P. 16; on its obligations under
the Speedy Trial Act; and on "the ability
of a court to use its best judgment to
move its crowded docket." Plaintiff's
attorney claimed that a summary jury
trial would require disclosure of privi-
leged witness statements, whose pro-
duction the court had refused to com-
pel, and refused to proceed. The court
held him in criminal contempt. (See The
Third Branch, July 1987, at 4).

The Seventh Circuit vacated the con-
tempt order, and in its recent opinion
disagreed with the trial judge that rule
16(c) as amended in 1983 can be read as
authorizing a mandatory summary

jury trial. While agreeing that the pre-
trial conference under rule 16 was in-
tended to foster settlement through the
use of extrajudicial procedures, the
appeals court said that the rule "was
not intended to require that an unwill-
ing litigant be sidetracked from the
normal course of litigation." The Sev-
enth Circuit emphasized that it was not
ruling on how summary jury trials may
be used with the consent of the parties,
nor expressing a view on the effective-
ness of the technique in facilitating set-
tlements.

Requiring a mandatory summary
jury trial as a pretrial settlement device
would also "affect seriously the well-
established rules concerning discovery
and work-product privilege," the court
said. Where the Supreme Court and
Congress, through the rulemaking
process, have addressed the appropri-
ate balance between the needs for judi-
cial efficiency and the rights of the indi-
vidual litigant, innovation by the indi-
vidual judge must conform to that bal-
ance, the court said.

Two bills introduced in Congress
would expressly allow district courts to
utilize summary jury trials — H.R. 473,
introduced by Rep. William J. Hughes
(D-N.J.), and S. 2038, introduced by
Sen. Mitch McConnell (R-Ky.). Under
the bills, the court could order the par-
ties to participate in an alternative dis-
pute resolution only ufX)n the parties'
agreement to do so, but the bills would
provide sanchons for an "unreasonable
refusal" to participate by either of the
parties. ■

Certiorari Denied in Appeal

The Supreme Court has denied cer-
tiorari in Nixon v. U.S., No. 87-650.

JudgeWalterL.Nixon,Jr.(S.D.Miss.)
was convicted in 1986 of perjury before
a federal grand jury, and the conviction
was affirmed by the Fifth Circuit in
1987. U.S. V. Nixon, 816 F.2d 1022 (5th
Cir. 1987). Judge Nixon's petition for re-
hearing and suggestion for rehearing

by Judge Walter L. Nixon

en banc were later denied by the Fifth
Circuit. Eleven of the circuit's fourteen
active circuit judges recused them-
selves from the case. Judge Nixon had
asked that the local rule requiring a ma-
jority vote of all active circuit judges in
order for the case to be reheard en banc
be modified in his case, but the Fifth
Circuit declined to modify the rule. ■

ABA Task Force Issues

Caseflow Management

Report

The Lawyers Conference Task
Force on Reduction of Litigation Cost
and Delay of the Judicial Administra-
tion Division of the ABA has released
Caseflow Management in the Trial
Court — Now and for the Future, by
Maureen Solomon and Douglas K.
Somerlot. The task force was formed
to implement the knowledge gained
by the ABA Action Commission on
Court Cost and Delay and to promote
the adoption by the courts of the Stan-
dards Relating to Court Delay Reduc-
tion. The task force included among
its members Judge Robert C. Broom-
field (D. Ariz.) and Chief Judge
Robert F. Peckham (N.D. Cal.), as
well as state court judges, academics,
and practicing attorneys. The new
publication is intended to encourage
the application of case management
principles to the day-to-day work of
lawyers and courts.

Calendar

Mar. 3-5 Judicial Conference Committee on
the Bicentennial of the Constitution
Mar. 7-9 Seminar for Bankruptcy Chief
Deputy Clerks

Mar. 13-15 Bankruptcy Case Management
Workshop

Mar. 14-18 Seminar for Chief Probation/
Pretrial Clerks

Mar. 14-19 Fordham Graduate Program for
Probation Officers

Mar. 15-16 Judicial Conference of the
United States

Mar. 21-23 Seminar for District Deputy
Clerks-in-Charge

Mar. 22-25 Frontline Leadership Training
of Trainers

Mar. 23-25 Workshop for Judges of the
Fourth Circuit

Mar. 28-29 Conference for Metropolitan
District Chief Judges

Apr. 5-8 Workshop for Docketing Supervi-
sors

Apr. 6-8 Seminar for Magistrates of the
Ninth and Tenth Circuits
Apr. 7-8 Judicial Conference Advisory
Committee on Civil Rules

March 1988

theTHIRDbranch

Noteworthy

Fourth Circuit holds Virginia need not
provide counsel to state habeas peti-
tioners in death penalty cases. The
Fourth Circuit has overturned a dis-
trict court decision that held the Com-
monwealth of Virginia must provide
counsel to inmates sentenced to death
to assist in preparing state habeas cor-
pus petitions challenging their convic-
tions and sentences. Giarratano v.
Murray, No. 87-7519 (4th Cir. Jan. 4,
1988). "Virginia fulfills its obligation
under Bounds [v. Smith, 430 U.S. 817
(1977)] to provide all inmates with
meaningful access to the courts, and
there is no factual or legal justification
for requiring a higher standard of ac-
cess for death row inmates. In essence,
by reading the record to support a
sweeping extension of Bounds, the dis-
trict court has, under the guise of
meaningful access, established a right
of counsel where none is required by
the Constitution," the Fourth Circuit
held. The court quoted from the Su-
preme Court's opinion in Pennsylvania
V. Finley, 95 L. Ed. 2d 539 (1987), de-
cided subsequent to the district court's
decision: "We have never held that
prisoners have a constitutional right to
counsel when mounting collateral at-
tacks to their convictions, and we de-
cline to so hold today. Our cases estab-
lish that the right to appointed counsel
extends to the first appeal of right, and
no further." The appeals court found
no justification for holding that the
plaintiffs constitute an exception to
Finley, nor for reading Bounds's "mean-
ingful access" to the courts to require
the appointment of counsel. The
Fourth Circuit upheld that part of the
district court decision which held that
the Commonwealth need not provide
the inmates counsel to prepare federal
postconviction petitions.

Virginia provides inmates with a law
libraryand with institutional attorneys
who act in an advisory capacity in pre-
paring postconviction p>ctitions, as
well as with appointed counsel to as-
sist in cases that require an evidentiary

March 1988

Robert D. St. Vrain, clerk of the Eighth Circuit, speaks at a recent meeting of clerks of courts
of appeals at the FjC. The courts of appeals are in the process of formulating procedures for
handling appeals of guideline sentences. (At right, Robert Hoecker, Clerk, 10th Cir.)

hearing. The Fourth Circuit disagreed
with the district court's finding that the
legal assistance provided by Virginia
was insufficient for death row inmates.

Bankruptcy Court goes on seminar
tour in E.D. Va. All four bankruptcy
judges of the Eastern District of Vir-
ginia, led by Chief Judge Martin V. B.
Bostetter, Jr., spoke at recent seminars
in three different locations in the dis-
trict. Five hundred participants at-
tended the seminars, which were pro-
moted under the title, "The Bankruptcy
Court Comes to You." In addition to the
four judges, 30 other bankruptcy court
personnel participated. The seminars
were sponsored by the Committee on
Continuing Legal Education of the
Virginia Law Foundation, in coopera-
tion with the office of Michael M. Shep-
pard. Clerk of the Bankruptcy Court.

Printed materials handed out at the
seminars included a detailed outline of
local rules and court procedures, cop-
ies of local forms, and a copy of the new
local rules of the Eastern District's
Bankruptcy Court. Presentations by
court personnel covered all phases of
bankruptcy practice, from case filing to
the procedure for obtaining informa-
tion from the court on a closed case.

The seminar presentations were also
used asa vehicle for training employees
on the new local rules, and for further
standardization of court procedures

for all four bankruptcy divisions withi
the district.

Parole Commission conducts pile
program of monitoring parolees witl
electronic sensors. The U.S. Parol
Commission has begun a test prograr
to supervise certain federal parolees b
means of electronic monitoring. Seve;
parolees in Miami and four in Lo
Angeles entered the program in Janu
ary. A total of 200 parolees will b
involved when the commission evalu
ates the program in 18 months.

Under the program, offenders wh
do not need halfway house services wi
be released from prison to the commi
nity up to 180 days in advance of the
parole date. Parolees will wear on the
ankles electronic devices that sen
signals to transmitters in the parolee
home telephones. During the early n
lease period, the parolees must b
home at all times except for work, ai
thorized treatment programs, an
worship services. The transmitters n
lay a signal to a computer, which d(
tects any unauthorized absences of th
parolees from their homes. If the pare
ees cannot be reached, their probatio
officers will personally investigate.

Electronic monitoring (see The Thii
Branch, December 1 987, at 4) costs $5-1
a day per parolee, compared with a co;
of $30 a day for parolees released I
halfway houses.

BULLETIN OF THE rh
FEDERAL COURTS ^T^

Resolutions on Court Issues Discussed by ABA

At the ABA'S midyear meeting in
[liladelphia last month, the following
sues of interest to the federal courts
ime before the house of delegates.
Evaluation of judicial performance.
ye ABA has adopted committee rec-
nmendations amending its judicial
?rformance guidelines program to
elude federal judges. When the pro-
am was adopted in 1985 it covered
ily state judges. At that time the ABA
ok no position on the program's
tplicability to Article III federal
dges, because of existing federal leg-
ation on the subject and because of
s federal Code of Judicial Conduct,
proved by the Judicial Conference of
? United States.

>ie- third of the states have adopted
me or all of the ABA's program to
te.

Standards for judicial education.
I amendment to a previous ABA
mdard was approved to further clar-
that non-judges, including law pro-
sors, attorneys, court administra-
s, and others, "may be utilized
lere their expertise will contribute to
als" of judicial education and train-
; programs.

Jubpoena of attorneys. The ABA
iffirmed the principle of prior judi-
1 approval of subpoenas of attorneys
evidence obtained as a result of the
omey-client relationship. The new
ommendation specifies the stan-
rds the ABA believes the court
3uld apply in ruling on the
)secu tor's request for such a sub-
;na.

awyers' Code of Professionalism.
:cmpts to draft a new Code of Prof es-
nalism for lawyers were delayed
en suggested changes were with-
iwn after submission to the house of
egates.

ederal habeas corpus death pen-
Y proceedings. This resolution
ed for a series of actions aimed at
nging about full implementation of
provisions of the Criminal Justice
t Revision of 1986 and the Criminal

Justice Act (CJA) Guidelines amended
in 1987, and acknowleges"the efforts of
the federal judges to implement these
provisions and guidelines." The reso-
lution calls for a raise in the amounts
paid court-appointed counsel in fed-
eral habeas corpus death penalty cases,
in addition to waivers of the case com-
pensation limit for investigative, ex-
pert, and other services court-ap-
pointed attorneys have found neces-
sary in the past. The resolution also
calls for changes in procedures fol-
lowed to appoint attorneys to assure
adequate representation (such as the
appointment of the same attorneys in
federal habeas corpus proceedings as
were counsel for the defendants in state
postconviction proceedings); preas-
signment screening of attorneys to as-
sure that only trained and experienced
attorneys are appointed; and the ap-
pointment of two attorneys in every
federal habeas corpus death penalty
case as counsel of record. To give fur-
ther support for these requests the
proposers called for creation of more
regional centers to provide expert
advice and assistance to these court-
appointed counsel. The resolution also
encouraged the federal courts, in im-
plementing CJA plans, to "consult ex-
tensively with appropriate state crimi-
nal justice leaders to ensure the maxi-
mum extent of coordination and con-
sistency" in the appointment of post-
conviction counsel in death penalty
cases. After debate and redrafting the
house of delegates approved.

The Judicial Conference of the United
Statesapprovedtheamendmentstothe
Guidelines in March of 1987, after
having asked the chief judges in 1986 to
establish task forces to develop more
information on the impact of the pro-
jected death penalty cases reaching the
postconviction stage in federal courts.
In addition, the Judicial Conference es-
tablished special alternative maximum
hourly compensation rates for four
federal district courts in California.
(See The Third Branch, January 1988, at

Positions Available

District Court Executive, N.D. Ga. Sal-
ary to $72,500. Works under direcHon of
judicial council pursuant to 28 U.S.C. §
332(e) and other statutes and rules. Must
have bachelor's degree in management or
related field, experience in administra-
tion or equivalent. Legal training pre-
ferred but not required. Certification pur-
suant to 28 U.S.C. § 332(f) prerequisite to
appointment, but applications from non-
certified applicants encouraged. Send
resume by Apr. 1, 1988, to Ben H. Carter,
District Court Executive, U.S. District
Court, Northern District of Georgia,
Room 2211, U.S. Courthouse, 75 Spring
St., S.W., Atlanta, GA 30335.

Chief Deputy Clerk, Bankruptcy
Court, D.Colo. Salary $33,218-54,907. Re-
qiairements: Bachelor's degree, minimum
6 years progressively responsible admin-
istrative experience in public or private
service, including a minimum 3 years in
position of substantial management re-
sponsibility. Position available June 1,
1 988, or sooner. Send resume by Ma r. 31 to
Bradford L. Bolton, Qerk, U.S. Bank-
ruptcy Court, 1845 Sherman, Room 400,
Denver, CO 80203-1190.

EQUAL OPPORTUNITY EMPLOYERS

1, 3.) The Judicial Conference at its
meeting this month will further con-
sider these and other related matters.

ABA dues. A 25 percent reduction
from the regular dues was approved by
the house for certain classes of mem-
bers, including all full-time judges and
full-time government lawyers. The
new rates take effectinjune. For further
information and application for mem-
bership contact Ms. Suzanne Wegrzyn,
Director of Membership, at (312) 988-
551 6, or write to the ABA at750N.Lake
Shore Drive, Chicago, IL 60611.

Juror use and management. The
ABA house of delegates did not amend
standard 9(d), adopted in 1983, which
relates to peremptory challenges. One
amendment would have specified that
the number of peremptory challenges
in criminal cases "be equal for prosecu-
tion and defense where there is one def-
endant." Proponents said the amend-
ments were necessary because of the
Supreme Court's 1986 decision in Bat-
son V. Kentucky. ■

March 1988

theTHIRDbranch

Personnel

SUPREME COURT OF THE U.S.
Confirmation

Anthony M. Kennedy, Associate Justice,

Feb. 3

Appointment

Anthony M. Kennedy, Associate Justice,

Feb. 18

ORCUIT JUDGES
Confirmation

Wade Brorby, U.S. Circuit Judge, lOth
Cir., Feb. 16

Appointment

Robert E. Cowen, U.S. Circuit Judge, 3d

Cir., Nov. 15

DISTRICT JUDGES
Nominations

Bernard A. Friedman, U.S. District
Judge, E.D. Mich., Feb. 2

Emilio M. Garza, U.S. District Judge,
W.D. Tex., Feb. 2

George M. Marovich, U.S. District
Judge, N.D. 111., Feb. 2

Thomas S. Zilly, U.S. District Judge,
W.D. Wash., Feb. 16

Donald E. Abram, U.S. District Judge, D.

Colo., Feb. 19

Shannon T. Mason, Jr., U.S. Disfrict
Judge, E.D. Va., Feb. 22

Nomination Withdrawn

Robert N. Miller, U.S. District Judge, D.
Colo., Feb. 2

Confirmations

Richard J. Arcara, U.S. District Judge,
W.D.N.Y., Feb. 19

Suzanne C. Conlon, U.S. District Judge,
N.D. 111., Feb. 19

Edward F. Harrington, U.S. District
Judge, D. Mass., Feb. 19

Paul V. Niemeyer, U.S. District Judge,
D. Md., Feb. 19

Appointments

William L. Dwyer, U.S. District Judge,
W.D. Wash., Dec. 1

George C. Smith, U.S. Dish-ict Judge,
S.D. Ohio, Dec. 1

Nicholas H. Politan, U.S. District Jud
D.N.J., Dec. 14

Alfred M. Wolin, U.S. District Jud
D.N.J.,Jan. 4

Michael B. Mukasey, U.S. District Juc
S.D.N.Y. Jan. 7

Elevation

William C. CKelley, Chief Judge, ^
Ga., Jan. 1

Senior Status

Whitman Knapp, U.S. District Ju(
S.D.N.Y., Nov. 23

Mark A. Costantino, U.S. District Jui
E.D.N.Y., Dec. 1

Cristobal C. Duenas, U.S. Dishict Ju
D. Guam, Jan. 1

Charles A. Moye, Jr., U.S. District Ju
N.D. Ga., Jan. 1

William M. Steger, U.S. District Ju
E.D. Tex., Jan. 1

Robert E. Demascio, U.S. District Ju
E.D. Mich., Jan. 16

Clarence C. Newcomer, U.S. Di;
Judge, E.D. Pa., Jan. 19

See PERSONNEL, p;

SENTENQNG, from page 1
further factual development."

The court rejected the defendants'
argument that the act establishing the
Commission constitutes an invalid
delegation of legislative power. The
court found that "[t]he Act provides
ample statements of policy and specific
rules to guide the Commission's exer-
cise of the delegated authority."

The court agreed, however, with the
defendants' argument that the Com-
mission is constitutionally defective
under the separation of powers doc-
trine, because the statute creating the
Commission places it in the judicial
branch, whose power is limited under
the Constitution to the resolution of
cases and controversies, while the
Commission's "duties and powers are
distinctly nonjudicial in nature." The
Commission's job of interpreting,
monitoring,and enforcing the mandate
of Congress constitutes an executive
function, the court held.

The Justice Department argued that

the court should sever the language of
the act that designates the Commission
as a part of the judicial branch, rather
than declare the Commission unconsti-
tutional. The court held that "striking
the designating language and effectu-
ating a de facto transfer of the Commis-
sion ... to a different branch or to an
independent status would appear to
unduly frustrate Congressional in-
tent." Moreover, even were the desig-
nating language to be severed, the
Commission's composition itself
would violate the Constitution, the
court held. This would be so because
the three judge-commissioners' inde-
pendence and neutrality in their role as
Article III judges would be impaired,
and because the mandatory assign-
ment of judges to an executive commis-
sion creates "an excessive intermin-
gling of two branches of government"
and "erodes the appearance of imparti-
ality of the Judicial Branch."

The court held that it could not sepa-
rate the Commission's work product

from the fact of the Commission'!
constitutionality. "The Guide
being promulgated and distributt
a constitutionally flawed Commii
must be held invalid."

The decision and order were ">
fied for immediate interlocutory
or appeal as appropriate and if i
able."

The orders in both Arnold
Manley provide that if it is necess;
sentence the defendants, they w
sentenced according to the law
applies to conduct occurring pr
Nov. 1, 1987.

The Federal Defenders of San Die^
dismissed by the D.C. court had
filed by public defender organiz;
seeking a declaratory judgmen
Congress's grant of authority i
Sentencing Commission was unc
tutional. Plaintiffs claimed th;
guideline sentencing system
workload and ethical problems
tomeys representing defendant

See SENTENaNG,

March 1988

BULLETIN OF THE rK
FEDERAL COURTS ^^

HIEF JUSTICE, from page 1

lies that offer greater protection of
dividual rights than is offered by
)gnate provisions of the United States
onstitution." He said Long merely
mounced a rule by which the Su-
•cme Court will decide how a decision
at seems to the Court ambiguousas to
ounds will be interpreted for pur-
)ses of Supreme Court review. "It
x?s not seem to me to be in any way
ifair to state courts to follow a rule
at if they are to place the ruling on a
ound of state constitutional law
hich will ensure that their decision is
)t reviewed by our Court, they should
ainly say so," the Chief Justice said.
He next turned to the question of
hen federal appellate courts will cer-
y questions of state law to the highest
ur ts of the sta tes under state certif ica-
m procedures. The Chief Justice re-
ewed the abstention doctrine, by
eans of which federal courts may
bmit questions of state law to state
urts for determination. He noted the

dilemma faced by federal courts in
cases where they are asked to rule on a
state statute without a fully developed
factual context and where there is little
or no state case law interpreting the
statute. While the abstention doctrine
will apply if there is a genuinely debat-
able question of state law, the Chief
Justice suggested that state attorneys
general "are not terribly happy with it,
because they, like their opponents,
know that the federal court will ulti-
mately decide any federal constitu-
tional questions in the case, and they
would prefer to get the litigation over
with without the additional delays re-
sulting from abstention." Thus, the
process of certifying questions of state
law to state supreme courts that are
willing to accept such certified ques-
tions "is a promising tool for obviating
some of the great difficulties which
result when a federal court attempts to
interpreta state statute which has never
been interpreted by the highest court of
the state," the Chief Justice said. He
noted the recent case of Virginia v.

American Booksellers Ass'n, 56 U.S.L.W.
4113 (S. Ct. Jan. 25, 1988), in which
questions of state law were certified to
the Supreme Court of Virginia.

The Chief Justice then discussed what
the relationship should be between
state-court review of a death sentence
and federal habeas review. He com-
mented on the increasing number of
people on death row and identified a
need for "some sort of regularization of
the procedures which now attend last
minute appeals and requests for stay of
execution." Given "the sort of chaotic
conditions that often develop within a
day or two before an execu tion is sched-
uled," the Chief Justice urged that "the
possibility of imposing some reason-
able regulations" on the situation be
explored. Stating that he did "not have
any particular remedy in mind," he
announced that he intends to ask an
appropriate committee of the Judicial
Conference to look into the matter.

Copies of the Chief Justice's speech
are available from the FJC's Informa-
tion Services Office. ■

•RSONNEL, from page 6

Jtirement

George Leighton, U.S. District Judge,

D. 111., Dec. 1

Frank J. McGarr, U.S. District Judge,

D. 111., Jan. 5

eath

Marion S. Boyd, U.S. District Judge,
.D. Tenn., Jan. 9

VNKRUPTCY JUDGES
ppointments

E. Stephen Derby, U.S. Bankruptcy
dge, D. Md., Dec. 9

Frank D. Howard, U.S. Bankruptcy
dge, W.D. Wash., Dec. 22
Jo Ann C. Stevenson, U.S. Bankruptcy
dge, W.D. Mich., Dec. 23
John A. Rossmeissl, U.S. Bar\kruptcy
dge, E.D. Wash., Dec. 28
Ronald S. Barliant, U.S. Bankruptcy
dge,N.D.Ill.,Jan. 1

Richard T. Ford, U.S. Bankruptcy Judge,
D.Cal.,Jan.l

John H. Squires, U.S. Bankruptcy Judge,
D. 111., Jan. 1

Sidney B. Brooks, U.S. Bankruptcy
Judge, D. Colo., Jan. 4

Judith A. Boulden, U.S. Bankruptcy
Judge, D. Utah, Jan. 5

Edward J. Lodge, U.S. Bankruptcy
Judge, D. Idaho, Jan. 7

Linda B. Riegle, U.S. Bankruptcy Judge,
D. Nev.,Jan. 11

Nancy C. Dreher, U.S. Bankruptcy
Judge, D. Minn., Jan. 25

S. Martin Teel, Jr., U.S. Bankruptcy
Judge, D.D.C., Feb. 8

Christopher M. Klein, U.S. Bankruptcy
Judge, E.D. Cal., Feb. 9

Brett J. Dorian, U.S. Bankruptcy Judge,
E.D. Cal., Feb. 16

MAGISTRATES (FULL-TIME)
Appointments

Ann E. Vitunac, U.S. Magistrate, S.D.
Fla., Nov. 30

Nancy Fiora, U.S. Magistrate, D. Ariz.,
Dec. 1

John T. Reid, U.S. Magistrate, D. Kansas,
Dec. 1

Christine Ann Noland, U.S. Magistrate,
M.D. La., Dec. 4

Robert Jake Johnston, U.S. Magistrate,
D. Nev., Dec. 14

Robert M. Stone, U.S. Magistrate, CD.
Cal., Jan. 20

Robert M. Holter, U.S. Magistrate, D.
Mont., Jan. 21

Paul W. Greene, U.S. Magistrate, N.D.
Ala., Jan. 21

Joseph W. Scoville, U.S. Magistrate,
W.D. Mich., Jan. 28

Charles F. Eick, U.S. Magistrate, CD.
Cal., Jan. 29

Sue L. Robinson, U.S. Magistrate, D.
Del., Feb. 1

Barbara A. Lee, U.S. Magistrate,
S.D.N.Y., Feb. 4

G.R. Smith, U.S. Magistrate, S.D. Ga.,
Feb. 8

Retirements

James J. Penne, U.S. Magistrate, CD.
Cal., Jan. 19

Spence Grayson, U.S. Magistrate, S.D.
Ga., Jan. 27

Resignation

N. Richard Powers, U.S. Magistrate, D.
Del., Jan. 27

March 1988

theTHIRDbranch

SENTENQNG, from page 6

may be sentenced under the guidelines

(see The Third Branch, January 1988, at

1).

The court, while agreeing that a
"prompt resolution" of the constitu-
tionality of the guidelines "is crucial to
maintaining the orderly functioning of
our criminal justice system," said that it
would not "stretch traditional standing
principles to accommodate this par-
ticular case."

The court's memorandum opinion
accompanying its order dismissing the
suit concluded that "the harm alleged
by plaintiffs . . . essentially boils down
to their perception that their workload
will be more complex and will mark-
edly increase That sort of 'harm' or

'injur/ is no different from the 'harm'
that the passage of the Tax Reform Act
of 1986 caused for tax lawyers, or . . .
than the 'harm' caused for criminal
lawyers by the passage of the Bail Re-
form and Speedy Trial Acts. ... In
addition, the fact that plaintiffs believe
their clients will be harmed by the
Guidelines does nothing to compen-
sate for their lack of standing in their
own right. ... To accept plaintiffs'
argument would mean that specialized

sections of bar associations throughout
the country would be able to sue with-
out regard to whether or not they are
representing an identifiable client with
a specific grievance."

Challenges to the constitutionality
of the guidelines have also been raised
in several other districts. ■

LEGISLATION, from page 2
introduced H.R. 3867, to amend Fed.
R. Evid. 803 to provide an explicit
hearsay exception in certain child
abuse cases.

• The Subcommittee on Water Re-
sources, Transportation, and Infra-
structure of the Senate Committee on
Environment and Public Works held
a hearing Feb. 3 on S. 1934, the bill to
construct a new office building in
Washington to house agencies of the
judicial branch and retired justices of
the Supreme Court (see The Third
Branch, February 1988, at 8). Retired
Chief Justice Warren E. Burger, AO
Director L. Ralph Mecham, and
George M. White, the Architect of the
Capitol, testified in favor of the bill.

The new judiciary building would
be constructed by a private devel-
oper, with the government providing

no funds for construction costs. Ti
government would pay a reduce
rental rate while the developer woul
pay a commensurately lower rate f(
the ground lease. Ownership of tl
land would remain with the gover
ment at all times, and ownership
the building would revert to the go
ernment at the end of a 30-year p
riod. A hearing on the judiciary bail
ing bill was held before the Hou
Public Works and Transportati(
Committee's Subcommittee on Pub
Buildings and Grounds last year.

• As previously reported, legislatii
was enacted raising the salaries
U.S. bankruptcy judges and fuU-tii
U.S. magistrates to 92 percent of tl
of a U.S. district judge effective C
1, 1988 (see The Third Branch, Febi
ary 1988, at 1). The Budget Comnr
tee of the Judicial Conference cons
ered and agreed unanimously to r
ommend a supplemental appropi
tions bill that would implement i
salary measure effective Apr. 1. T
action was approved by the Execut
Committee of the Judicial Conferei
on Jan. 13. The funding request 1
been presented to the House App
priations Committee.

/H> BULLETIN OF THE FEDERAL COURTS

THETHIRDBRANCH

Vol.20 No. 3 March 1988

The Federal Judicial Center

1520 H Street, N.W.
Washington, DC 20005

Official Business

First
Class
Mail

Postage ai

fees paid

United Sta

Courts

U.S. GOVERNMENT PRINTING OFFICE 1988-201-733-80001
March 1988

D.3/-^

BULLETIN OF THE FEDERAL COURTS

-■^xry-

Mb.

^"i/V

iJl

rHETHIRDB&jeH

«*

VOLUME
NUMBER 4
APRIL 1988

E20 * ■'Wll

rourt Decisions in S.D. Cal., E.D. La. Uphold
lonstitutionality of Sentencing Guidelines

Recent court decisions in the South-
n District of California and the East-
n District of Louisiana have upheld
e guideline sentencing scheme. Both
K:isions rejected challenges that the
udelines are unconstitutional, and
e Louisiana court also rejected a
lallenge on statutory grounds. U.S.
Ruiz-Villanueva, No. 87-1296-E (S.D.
i\. Feb. 29, 1988); U.S. v. Chambless,
0. 87-609 (E.D. La. Mar. 9, 1988). In
>th Ruiz-Villanueva and Chambless
e courts rejected arguments that the
lidelines constitute an excessive
(legation of legislative power and
olate the separation of powers doc-
ne. In rejecting the delegation argu-
ent, both courts found that the
)wer delegated to the Commission
as sufficiently limited to meet the
mdard for a proper delegation. In
jecting the separation of powers
gument, they found that the pres-
ce of judges on the Commission
)es not compromise the impartiality

of the judiciary as a whole in apply-
ing the guidelines, and noted that
individual judge-commissioners
could resolve questions of their own
impartiality through recusal.

Addressing the separation of pow-
ers arguments, the Ruiz-Villanueva
court found that the Sentencing Re-
form Act "does not unconstitutionally
expand the power either of the three
Article III judges who are members of
the Commission or of the judicial
branch as a whole." The court found
that "Congress expressly created an
'independent commission' — a body
that . . . would assist in the primarily
judicial task of sentencing without
itself exercising the judicial power."
This does not exceed the scope of the
judicial power, the court found, be-
cause "it is well settled that Congress
may authorize judges to perform
tasks that aid in the performance of
their judicial functions." Defendants

See GUIDELINES, page 4

udicial Conference of United States Endorses
egislation. Approves Videotaping of a Trial

The Judicial Conference of the
lited States at its biannual meeting
Washington last month endorsed
risdictional provisions contained in
bill pending in the House of Repre-
ntatives, approved a recommenda-
m that an upcoming trial be video-
ped, and transmitted to the House
Representatives a certificate stating
at "consideration of impeachment
ay be warranted" against Judge
alter L. Nixon, Jr. (S.D. Miss.).
The Fifth Circuit Judicial Council
rtified to the Judicial Conference on
b. 11, 1988, that Judge Nixon had
ngaged in conduct which might
nstitute one or more grounds for
ipeachment." The Council premised
certification "entirely u{X)n the

judgment of conviction" of two
counts of perjury in the Southern
District of Mississippi, affirmed by
the Fifth Circuit. The Supreme Court
declined review Jan. 19, 1988 (see The
Third Branch, March 1988, at 3). Any
further action in this case is now
within the discretion of the House.

The Conference passed two recom-
mendations endorsing proposed
changes in federal jurisdiction con-
tained in H.R. 3152, an omnibus court
reform bill. It endorsed the creation
of multi-party, multi-forum jurisdic-
tion that is intended to consolidate
actions involving personal injury or
property damage arising out of a
single-event disaster. It also reaf-
See JUDICIAL CONFERENCE, page 2

Judges Clifford Wallace,
David D. Dowd, Jr.
Elected to FJC Board

The Judicial Conference of the
United States has elected Judge J.
Clifford Wallace of the Ninth Circuit
and Judge David D. Dowd, Jr., of the
Northern District of Ohio to the
Board of the
Federal Judi-
cial Center.

Judge Wal-
lace fills the
position held
by Justice
Anthony M.

Kennedy, judge Wallace

who was elevated to the Supreme
Court of the United States on Feb. 18,
1988. Judge Wallace came to the fed-
eral court system as a district judge in
1970 and in May 1972 was nominated
by President
Nixon for ap-
pointment to
the Ninth Cir-
cuit. His serv-
ice to the fed-
eral courts in-
cludes mem-
bership on Judge Dowd
such Judicial Conference committees
as the Subcommittee on Federal Juris-
diction and the Committee to Con-
sider Standards for Admission to
Practice in the Federal Courts.

A prolific writer. Judge Wallace has
published many articles on the courts
in legal periodicals, and he has lec-

See BOARD MEMBERS, page 4

Inside . . .

Judges polled on use

of experts p. 2

Legislative developments . p. 3

New publication on appeals
without arguments p. 3

theTHIRDbranch

Center Studies Judges'

Use of Experts Under

Rule 706

Federal judges more frequently
appoint experts under rule 706 of
the Federal Rules of Evidence
than generally recognized. A
search of the case law reveals few
instances in which such appoint-
ments are discussed. In a survey
of active federal district court
judges, however, the Federal
Judicial Center's Research Divi-
sion found that approximately
one in five judges has appointed
an expert under the authority of
this rule. Of these, about half
have appointed an expert on
more than one occasion. The sur-
vey also asked judges to indicate
the types of cases in which such
assistance is likely to prove help-
ful. Patent cases were most fre-
quently noted, followed by prod-
uct liability and antitrust cases.
In the coming months the Center
will be contacting some judges
by telephone seeking more infor-
mation about the nature of the
court appointment and how this
procedure may be improved.
Some judges who have not ap-
pointed experts also will be con-
tacted to learn their views on
such appointments.

Dana H. Gallup, First Circuit's Executive, Retires

Dana H. Gallup, Circuit Executive of
the First Circuit, has retired after serv-
ing with the First Circuit for over 40
years.

Chief Judge
Levin H.

Campbell
termed Mr.
Gallup's de-
parture "a maj-
or loss to the
courts," and
praised him as
"the model of ^^"^ ^- ^''""P
everything an excellent court adminis-
trator and a devoted public servant can

be I know of no single individual —

administrator or judge— who has con-

Ht( bulletin of the federal courts

theTHIRDbranch

Published monthly by the Administrative
Office of the U.S. Courts and the Federal
Judicial Center. Inquiries or changes of
address should be directed to 1 520 H Street,
N.W., Washington, DC 20005.

Co-editors
Alice L. ODonncll, Director, Division of
Inter-Judicial Affairs and Information
Services, Federal Judicial Center. Peter G.
McCabc, Assistant Director, Program
Management, Administrative Office of the
U.S. Courts.
April 1988

tributed more than Dana H. Gallup to
the reputation and strength of the fed-
eral courts in this region."

Mr. Gallup began his court career ir
1947 when he was appointed Cour
Crier of the First Circuit. He later be
came the circuit's Deputy Clerk anc
Chief Deputy Clerk. He was namec
Clerk in 1970, and in 1983, became th(
first person to serve as Circuit Execu
tive of the First Circuit. He is a gradual
of Suffolk University and Northeaster!
University School of Law and a mem
ber of the Massachusetts bar.

Grace Carey, presently Assistant Cii
cuit Executive in the First Circuit, wi
be Acting Circuit Executive until M
Gallup's successor assumes the office

JUDICIAL CONFERENCE, from p. 1

firmed its support for raising the re-
quired amount in controversy neces-
sary for diversity jurisdiction from
$10,000 to $50,000, a provision of H.R.
3152.

The Conference also approved a
recommendation endorsing the pro-
vision of H.R. 3152 that would alter
the definition of corporate citizenship
for diversity purposes. That provision
would amend 28 U.S.C. § 1332(c) to
provide that (in addition to being a
citizen of any state by which it has
been incorporated) a corporation
would be deemed a citizen of "any
State in which it does business"
rather than of "the State where it has
its principal place of business."

The Conference approved a recom-
mendation that the trial of In re Wash-
ington Public Power Supply Sys. Securi-
ties Litig., No. MDL 551, be video-
taped. The case, trial of which is
expected to start in Tucson this year,
involves more than 125,000 plainHffs,
multi-billion dollar claims, more than
200 defendants, and the expected
presence in the courtroom of more
than 100 attorneys. Since the trial will
necessarily be protracted and some
jurors or counsel may therefore miss

a portion of it due to health reasor
or emergencies, they will be give
access to the videotapes for the tim(
they were absent, but the videotap
will not be made public.

Among other actions, the Confe
ence

• approved the selection of foi
courts to participate in a pilot proje
under which the courthouse buih
ings would be managed by the cour
instead of by the GSA. The foi
courts are N.D. Ala., S.D. Fla., W.l
Wash., and the 11th Cir.

• voted to endorse the concept
abolishing the Board of Certtficatic
and the certificahon process that h
been required in qualifying applicar
to circuit executive positions.

• approved a resolution encoura
ing district courts to transfer jurisdi
tion of offenders on supervised i
lease to the district courts where su
persons are being supervised, p£
ticularly when a violation of sup(
vised release has occurred.

• re-endorsed an amendment to
U.S.C. § 3563(a) that would provi
exceptions to the requirement that
probation is imposed for a felony, t
sentence must include a fine, restii

See JUDICIAL CONFERENCE, page

BULLETIN OF THE rH
FEDERAL COURTS ^1*

Senate Passes Magistrates and Bankruptcy
fudges Retirement Bill; House Version Amended

The Senate has passed S. 1630, a bill
0 provide enhanced retirement and
urvivors' annuities for bankruptcy
idges and magistrates. The bill pro-
ides that a bankrupcty judge or

Third Branch, August 1987, at 5).
Judge Elmo B. Hunter (W.D. Mo.),
the former chairman of the Judicial
Improvements Committee of the Ju-
dicial Conference of the United States

•enator Howell Heflin (D-Ala.), Judge Elmo B. Hunter (W.D. Mo.), Robert M. Landis of
he ABA's Standing Committee on Federal Judicial Improvements, and Chief Judge
[ichard M. Bilby (D. Ariz.) prior to the recent hearing on S. 1482.

nagistrate with 14 years of service
vould receive a pension equal to the
alary at the time of leaving office;
he pension could not be drawn until
ige 65. The House Judiciary
Committee's Subcommittee on
Courts, Civil Liberties, and the
Administration of Justice has marked
ip the counterpart measure, H.R.
586, the Retirement Annuities for
bankruptcy Judges and Magistrates
Act of 1987 (see The Third Branch,
^Jovember 1987, at 10 and October
987, at 1). The House amended its
•ill to require a 3 percent contribu-
ion for 15 years and to penalize
hose who leave the bench before age
'5 by reducing the pension by 2 per-
ent for every year one is under age
6 when one leaves the bench.
The Senate Judiciary Committee's
Courts Subcommittee, chaired by
ien. Howell Heflin (D-Ala.), held
learings on S. 1482, the Judicial
5ranch Improvements Act (see The

and Chief Judge Richard M. Bilby (D.
Ariz.), current chairman of the Judi-
cial Improvements Committee, testi-
fied on behalf of the Judicial Confer-
ence. Among the subjects the bill
treats are the Supreme Court's man-
datory jurisdiction; court-annexed
arbitration in a number of district
courts; permitting clerks of court to
grant temporary excuses to jurors
faced with "undue hardship or ex-
treme inconvenience"; judicial immu-
nity; the phasing out of the Tempo-
rary Emergency Court of Appeals;
and the creation of a Federal Judicial
Center Foundation to accept gifts on
behalf of the Center. Since S. 1482
was introduced, the Judicial Confer-
ence has approved a number of items
that it recommends be added to the
bill, including a provision to create a
mulH-party, mulh-forum federal ju-
risdiction to consolidate in federal
court cases involving personal injury
or property damage arising out of a

Center Releases Publication
on Nonargument Appeals

Most of the federal appellate
courts now have specialized proce-
dures for selecting some cases for
disposition without argument, and
the debate about these procedures
continues. The fundamental ques-
tion of the debate is whether ap-
peals decided without arguments
are receiving adequate attention. By
helping to clarify the procedures
involved in selecting cases for non-
argument disposition, a new report
released by the FJC provides a par-
tial answer to this question.

Deciding Cases Without Argument:
An Examination of Four Courts of Ap-
peals, by Joe S. Cecil and Donna
Stienstra, discusses the role of staff
attorneys and special judicial panels
in the selection of cases for nonar-
gument disposition in the federal
appellate courts. Based on an ex-
amination of administrative records
and on interviews with clerks, sen-
ior staff attorneys, and judges, the
report describes the criteria and
methods used in selecting nonargu-
ment cases. It also presents the
judges' views concerning the role of
oral argument.

Copies of the report can be ob-
tained from Information Services,
1520 H St., N.W., Washington, DC
20005. Please send a self-addressed
mailing label, preferably franked
(16 oz.), but do not send an enve-
lope.

single event disaster. Such a provi-
sion is contained in H.R. 3152, on
which hearings have been held.

The Senate Judiciary Committee's
Subcommittee on Courts and Admin-
istrative Practice held hearings on S.
1608, to revise the federal judicial
code with respect to the administra-
tion of the U.S. Claims Court and the
salaries and benefits of Claims Court
judges.

The Senate passed H.R. 1212, a bill
that would limit the use of poly-
graphs in private industry, after
amending it to contain the text of S.

See LEGISLATION, page 7

April 1988

theTHIRDbranch

GUIDELINES, from page 1

also argued that the act violates the
principle of separation of powers by
vesting in the President the power to
remove members from the Commis-
sion. The court held that while the
Commission itself is "not an exclu-
sively judicial entity," it "performs a
primarily judicial function ... in
which all three branches must neces-
sarily remain interested." Because the
sentencing function "has never been
regarded as exclusively judicial," the
court said, "the power of the Presi-
dent to remove members of the Com-
mission does not infringe upon an
exclusively judicial function."

Ruiz-Villanueva is contrary to ear-
lier rulings in the same district hold-
ing the guidelines invalid on separa-
tion of powers grounds. U.S. v. Ar-
nold, No. 87-1279-B (S.D. Cal. Feb. 18,
1988); U.S. V. Manley, No. 87-1290-R
(S.D. Cal. Feb. 18, 1988) (adopting
reasoning of Arnold); U.S. v. Rivera-
Hueria, No. 87-1329-K (S.D. Cal. Mar.
2, 1988) (also adopting Arnold) (see
The Third Branch, March 1988, at 1).

In Chambless, the defendants at-
tacked the constitutionality of the
Sentencing Reform Act of 1984 on
three grounds: that Congress unlaw-
fully delegated its authority to fix
criminal penalties; that the presence
of judges on the Commission violates
the separation of powers doctrine;
and that the President's power to
remove commissioners constitutes an
impermissible control by the execu-
tive over the judiciary.

Chambless rejected all of these con-
stitutional arguments. The delegation
of power by Congress is not exces-
sive, as Congress has provided the
Commission with "explicit instruc-
tions" and "intelligible principles" to
guide its work. The presence of
judges on the Commission does not
violate separation of powers because
constitutional history and case law
demonstrate that "individual judges
may exercise extra-judicial power
while courts may not." The court also
rejected the argument that the impar-
April 1988

tiality of the entire judiciary would be
adversely affected by the service of
three fellow judges on the commis-
sion. Noting that "[i]t is no secret that
judges disagree with each other con-
stantly," the court found it unlikely
that federal judges would be affected
by the fact that other judges serve on
the Commission.

As to the argument that the
President's removal power over com-
missioners violated separation of
powers or due process principles, the
court held that while the Commission
is situated in the judicial branch.
Congress has delegated legislative
power to the Commission, and "the
exercise of that delegated authority in
rulemaking is an executive, not judi-
cial, function." The President's power
to remove the members of a commis-
sion charged with such an executive
function does not amount to an un-
constitutionally impermissible control
by the executive branch over the judi-
ciary, the court said.

In addition, the defendants in
Chambless argued that the guidelines
are inconsistent with the Sentencing
Reform Act— because, e.g., the guide-
lines require that a term of sup>er-
vised release be imposed in all felony
cases. They also argued that submis-
sions to Congress by the Commission
and the General Accounting Office
were not timely or adequate so as to
trigger the Nov. 1, 1987, effective
date. The court rejected these argu-
ments.

The government in Chambless con-
tended that the defendants lacked
standing unless the court determined
initially that they would have re-
ceived a heavier sentence under the
new sentencing law than before. The
court disagreed, finding that even if
the guideline sentences would not be
longer, defendants had a "personal
stake" because the actual time served
under the guidelines would likely be
greater due to the abolition of parole.
Moreover, under the new sentencing
law each defendant "faces a period of
supervised release to which he would
not otherwise be subject." ■

BOARD MEMBERS, from page 1
tured at several law schools. He is i
graduate of the University of Cali
fornia at Berkeley School of Law.

Judge David D. Dowd, Jr., will fil
the position on the Board previously
held by Judge A. David Mazzone (D
Mass.), whose term has expired.

Judge Dowd was nominated b;
President Reagan for appointment t(
the District Court for the District c
Northern Ohio in 1982. He has tei
years of service as a state prosecutoi
having served eight years as an as
sistant prosecuting attorney, an(
two as the Prosecuting Attorney fo
Stark County, Ohio. His prior judi
cial experience includes five years o
Ohio's Fifth District Court of Ap
peals and one year as a justice of th
Supreme Court of Ohio.

After graduating from the CoUeg
of Wooster with a B.A. degree i
1951, Judge Dowd earned a J.D. dc
gree in 1954 at the University c
Michigan Law School.

Calendar

Apr. 5-8 Workshop for Docketing Sup(

visors
Apr. 6-8 Seminar for Magistrates of th

Ninth and Tenth Circuits
Apr. 7-8 Judicial Conference Advisory

Committee on Civil Rules
Apr. 13-15 Seminar for Bankruptcy

Judges of Northeastern States
Apr. 17-20 Fifth Cir. Judicial Conferen
Apr. 18-22 Orientation Seminar for Ne

Probation/Pretrial Officers
Apr. 20-22 Seminar for Bankruptcy

Judges of Western States
Apr. 25-26 Judicial Conference Subcor

mittee on Statistics
Apr. 25-27 Seminar for Judges of the Fi

and Third Circuits
Apr. 25-29 Orientation Seminar for Ni

Probation/Pretrial Officers
Apr. 25-29 Financial InvestigationsTrai

ers' Workshop
Apr. 27-28 Judicial Conference Comm

tee on the Administrative Office
May 1-4 Eleventh Cir. Judicial Conferei
May 2-6 Supervisory Skills Seminar fc

Probation and Pretrial Officers
May 3-6 Workshop for New Training

Coordinators

BULLETIN OF THE r+r
FEDERAL COURTS Uji^

Noteworthy

Sanctions imposed on plaintiff for
failure to improve his position at trial
after rejecting mediation board's recom-
mendation. An unsuccessful plaintiff has
been ordered to pay attorney's fees and
some exp>enses of expert witnesses after
he proceeded with his lawsuit following a
mediation board's rejection of his claim.
In Tiedel v. Beech Aircraft Corp., 118 F.R.D.
54 (W.D. Mich. 1987), plaintiff was or-
dered to mediation under local rule 42 of
the Western District of Michigan. A hear-
ing was held before a mediation panel,
which returned a unanimous decision
that plaintiff had no cause of action.
Plaintiff rejected the panel's decision and
the case proceeded to trial for 14 days
before a jury. The jury returned a verdict
of "no cause of action." Defendant filed
its taxed bill of costs and motion for attor-
neys' fees, and defendant's motion was
granted and judgment entered in its fa-
vor, awarding costs and fees in the
amount of $110,993.11.

Plaintiff filed a motion to vacate the
order and judgment, challenging the con-
stitutionality and propriety of the imposi-
tion of sanctions under the local media-
tion rule, claiming that the rule exceeds
the inherent authority of the court to
promulgate rules, and that it is in viola-
tion of the right to trial by jury. He
stressed that 28 U.S.C. § 2071 provides
that "the rules adopted by district courts
must be consistent with Acts of Congress
and rules of practice and procedure pre-
scribed by the Supreme Court." As to the
cost-shifting provisions of local rule 42,
plaintiff argued that in imposing the pre-
vailing party's actual costs on the losing
party, the rule is inconsistent with the
Federal Rules of Civil Procedure and with
28 U.S.C. § 1920, because neither the fed-
eral rules nor the statute contain any
provision for including as "costs" the
prevailing parties' actual expert witness
fees or attorneys' fees.

The court upheld local rule 42 as "a
valid exercise of the Court's ir\herent
power." As to the award of attorney's
fees, it pointed out that in diversity cases,
state law controls the imposition of attor-
neys' fees, including those imposed as
costs. Because Michigan's mandatory
mediation scheme provides that attor-
neys' fees may be awarded as costs if a

party fails to recover a verdict greater
than that awarded by the mediation
panel, the court reaffirmed the award of
attorneys' fees to Beech.

The court reduced the amount of the
award for witness fees in light of
Crawford-Fitting Co. v. J.T. Gibbons, 107 S.
Ct. 2494 (1987), which held that absent an
express statutory basis or other authority,
the taxation of such costs in excess of the
statutory limits is not permitted. (28
U.S.C. § 1821 provides for a $30 per day
limit.)

Court taxes inmate with costs of frivo-
lous appeal, conditions further appeals.
The Fifth Circuit has upheld a district
court's dismissal of a lawsuit by a pris-
oner, and has taxed the costs of the frivo-
lous appeal against the inmate and barred
him from filing further appeals in forma
pauperis until the inmate has paid the
appellate costs taxed, unless the district
court certifies the appeal to be in good
faith. Lay v. Anderson, No. 87-3778 (5th
Cir. Feb. 12, 1988). The district court had
ordered the inmate to exhaust prison
remedies, but he failed to do so, and the
district court dismissed the action.

The appeals court upheld the dismissal
and stated its reasons for imposing addi-
tional sanctions: 'This court, like the dis-
trict courts in our circuit, has recently
witnessed a significant increase in the
number of pro se, usually prisoner, civil
rights achons. . . . The large majority of
these cases are without even arguable
legal footing. The judicial time and re-
sources they command are astonishingly
large and divert considerable attention
from other matters on our dockets. More-
over, there is a serious threat that legiti-
mate pro se petitions will drown in the
cacophony of the groundless ones. Taxing
costs against an unsuccessful in forma
pauperis litigant at the conclusion of his
appeal is one way to defray the judicial
and social burden imposed by these law-
suits." The appeals court noted that the
inmate had filed at least six petitions for
habeas corpus and several prisoner civil
rights cases, and that during the course of
the instant case he had "besieged the
federal court with pleadings" over a 15-
month period, including two previous
abortive interlocutory appeals. As a con-
sequence of his other cases, the appeals
court had dealt with at least three other
unsuccessful appeals. The inmate had
previously been warned that his litigious-
See NOTEWORTHY, page 6

The Source

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 mailing
label, preferably franked (but do not send an
envelope), and addressed to Federal Judicial
Center, 1520 H St., N.W., Washington, DC
20005.

Administrative Office of the U.S.
Courts. The Selection and Appointment
of United States Magistrates. 1987.

Bazelon, David L. Questioning Au-
thority: Justice and the Criminal Law.
Knopf, 1988.

Begue, Yvette, and Candace Gold-
stein. "How Judges Get into Trouble:
What They Need to Know About
Developments in the Law of Judicial
Discipline." 26 Judges' J. no. 4 at 8
(Fall 1987).

• Brennan, William J., Jr. "The
Quest to Develop a Jurisprudence of
Civil Liberties in Times of Security
Crises." Address, Law School of He-
brew University, Dec. 22, 1987.

Bucklo, Elaine E. "From the
Bench — Case Management: How to
Complete Discovery Without Grow-
ing Old." 14 Litigation no. 1 at 3
(Fall 1987).

Clark, Charles. "The Role of Na-
tional Courts in 200 Years of Evolv-
ing Governance." 18 Cumberland L.
Rev. 95 (1987-88).

Day, David S., and Charvin Dixon.
"A Judicial Perspective on Expert
Discovery Under Federal Rule
26(b)(4): An Empirical Study of
Trial Court Judges and a Proposed
Amendment." 20 John Marshall L
Rev. 377 (1987).

Eisenberg, David, Christine R. Jor-
dan, Maeva Marcus, and Emily F.
Van Tassel. "The Birth of The Federal
Court System." 17 this Constitution
at 18 (Winter 1987).

Gibbons, John J. "Judicial Review of
the Constitution." 48 University of

See SOURCE, page 6

April 1988

theTHIRDbranch

NOTEWORTHY, from page 5

ness must be controlled. Therefore, ur\til
the inmate pays the costs taxed against
him in the case, the appeals court bars
him from any further appeal in forma pau-
peris, unless the district court expressly
certifies that his appeal is in good faith.
As funds accumulate in the inmate's
prison account or he receives any other
income, prison officials must forward the
money to the Clerk of Court to pay the
$105 in court of appeals fees, the court
ruled.

U.S. Claims Court receives award for
ADR program. The Center for Public
Resources Awards Program for Excel-
lence and Innovation in Alternative Dis-
pute Resolution has given an award for
"Significant Practical Achievement" to the
U.S. Claims Court for its ADR initiatives.
In April 1987 the Claims Court instihited
a program featuring the use of settlement
judges and minitrials (see The Third

Branch, June 1987, at 1). Chief Judge
Loren A. Smith and Judge Lawrence S.
Margolis of the Claims Court attended
the midyear meeting of the Center for
Public Resources's Legal Program to ac-
cept the Claims Court's award. ■

SOURCE, from page 5

Pittsburgh L. Rev. 963 (1987).

Griswold, Erwin N. "Reflections on
Justice White." 58 University of Colo-
rado L. Rev. 339 (1987).

Heflin, Howell T. "The Impeach-
ment Process: Modernizing an Ar-
chaic System." 71 Judicature 123
(1987).

Hensler, Deborah R., Mary E.
Vaiana, James S. Kakalik, and Mark
A. Peterson. Trends in Tort Litigation:
The Story Behind the Statistics. Rand
Corp., 1987.

Positions Available

Assistant to Circuit Executive, 8th
Cir. Salary to $46,679, based on expe-
rience and qualifications. Assists with
financial and case management, in-
cluding statistical compilation and
evaluation; special research projects;
space and facilities; other duties as
assigned. Good written communica-
tion skills a must. Degree or experi-
ence in judicial administration or law
desirable. Position located in St. Paul,
MN. Send resume to Circuit Execu-
tive, Box 75428, St. Paul, MN 55175.
Open until filled.

Attorney-Adviser (General), De-
fender Services Division, Adminis-
trative Office. Salary $27,716—51,354.
Assists in administering federal ap-
pointed-counsel program consisting
of federal public defender and com-
munity defender organizations and
CJA panel attorneys. Reviews existing
and pending legislation, rules, and
regulations pertaining to CJA or de-
fender services; drafts memoranda,
opinions, and legislative proposals;
conducts legal research; responds to
telephone and written inquiries from
judges, magistrates, clerks, federal
defenders, CJA panel attorneys, and
public concerning the appointment
and payment of counsel and experts

in federal criminal cases and the op-
eration of federal defender organiza-
tions; assists district courts with plans
for implementing the CJA. Must have
law degree from ABA- or AALS-ac-
credited school, be bar member, and
have 1 year professional experience
post-J.D. Send SF171 for vacancy an-
nouncement 88-39, most recent an-
nual performance appraisal (letter of
recommendation for nonstatus appli-
cant), and writing sample to Admirus-
h-ative Office of the U.S. Courts, Per-
sonnel Division, Room 701, Washing-
ton, ex: 20544. Open until filled.

Clerk of Court, U.S. Bankruptcy
Court, D. Mass. Salary $54,907-
71,377. Requires 10 years progres-
sively responsible administrative ex-
perience in public service or business,
at least 3 in a position of substantial
management responsibility. Under-
graduate education may be partially
substituted for maximum of 3 years
of required general experience; law
degree may be substituted for an
additional 2 years. Submit resume or
SF171 to Mrs. Jean Bates, U.S. Bank-
ruptcy Court, 1101 Thomas P. O'Neill
Federal Building, Boston, MA 02222-
1074, marked Confidential, by May
16, 1988.

Kaufman, Irving R. "Congress as
Court: The Role of the Judiciary in
Protecting Witnesses' Rights." 71 ju-
dicature 184 (1988).

Leubsdorf, John. "Theories of Judg-
ing and Judge Disqualification." 62
New York University L. Rev. 237 (1987).

Miner, Roger J. "Query— Should
Lawyers Be More Critical of Courts?"
71 Judicature 134 (1987).

Nelson, Dorothy W., Thomas M.
Reavley, Thomas D. Lambros, et al.
"The Future of ADR: A Prospective
Look From Three Viewpoints— Jurist,
Educator, and Practitioner." 14 Pep-
perdine L. Rev. 769 (1987).

O'Malley, Kevin F. "The Assess-
ment of Costs in Federal Criminal
Prosecutions." 31 St. Louis University
L.J. 853 (1987). ■

EQUAL OPPORTUNITY EMPLOYERS

THE BOARD OF THE
FEDERAL JUDIOAL CENTER

Chairman

The Chief Justice
of the Uruted States

Judge Alvin B. Rubin

United States Court of Appeals

for the Fifth Circuit

Judge J. Clifford Wallace

United States Court of Appeals

for the Ninth Circuit

Judge Jose A. Cabranes

United States District Court

District of Connecticut

Judge William C. O'Kelley
United States District Court
Northern District of Georgia

Judge David D. Dowd, Jr.

United States District Court

Northern District of Ohio

Judge Robert E. Ginsberg

United States Bankruptcy Court

Northern District ofMnois

L. Ralph Mecham, Director

Administrative Office of the

United States Courts

Federal Judicial Center

Judge John C. Godbold, Director

Charles W. Nihan, Deputy Director

April 1988

BULLETIN OF THE rH
FEDERAL COURTS ^±«^

LEGISLATION, from page 3

1904 (see The Third Branch, January
1988 at 2). The House passed H.R.
1212 in November 1987.

The Senate Judiciary Committee's
Subcommittee on Courts and Admin-
istrative Practice held hearings on §
614 of S. 1482, and on S. 1512 and S.
1515, bills intended to address the
issue of judicial immunity from liabil-
ity for attorneys' fees in acHons seek-
ing declaratory and injunctive relief,
an area of concern since the Supreme
Court's Pulliam v. Allen decision.
George E. Danielson, an associate
justice of the California Court of
Appeal and a member of the Com-
mittee on Federal-State Jurisdiction of
the Judicial Conference of the United
States, testified.

The House Judiciary Committee's
Subcommittee on Civil and Constitu-
tional Rights held an oversight hear-
ing on the Nahonal Crime Informa-
tion Center.

The House passed a bill previously
passed by the Senate, S. 557 (see The
Third Branch, March 1988, at 2), which
is intended to overturn the Supreme
Court's Grove City College decision,
which had limited the reach of title IX
of the Education Amendments of
1972, § 504 of the Rehabilitation Act
of 1973, the Age Discrimination Act
of 1975, and title VI of the Civil
Rights Act of 1964 to the specific pro-
gram receiving federal funds. Presi-
dent Reagan vetoed the measure Mar.
16, and Congress overrode the
President's veto on Mar. 22.

Rep. Patricia Schroeder (D-Colo.)
introduced H.R. 4064, to authorize
the appointment of an additional
bankruptcy judge in each of the dis-
tricts of Colorado and Kansas.

Senator John F. Kerry (D-Mass.)
introduced S. 2109, a bill to amend
title 18 of the U.S. Code to protect the
civil rights of individuals from dis-
crimination on the basis of affectional
or sexual orientation.

Rep. Robert Kastenmeier (D-Wis.)
introduced H.R. 4021, the Federal
Prison Industries Reform Act of 1988,

a bill to amend title 18 of the U.S.
Code to permit Federal Prison Indus-
tries, Inc., to borrow from the Treas-
ury. Federal Prison Industries is a
wholly-owned, self-sufficient govern-
ment corporation formed by an act of
Congress and executive order in 1934.
It operates 75 factories in 42 federal
correctional institutions and provides
employment and training opportuni-
tites for inmates. It has traditionally
funded all capital expenditures from
retained earnings. "Because of the
unprecedented growth of the inmate
population . . . and the concomitant
demand for additional industrial pro-
grams," the program has undertaken
an expansion program in recent
years, according to Rep. Kastenmeier.
Expansion requires steady cash flows,
which can be provided by conferring
borrowing authority, he said.

Sen. Alan Dixon (D-Ill.) introduced
S. 2059, to make international paren-
tal abduction of children a felony. He
observed that the legislation would
enable the United States to extradite
parental child abductors in many
cases where extradition treaties ap-
ply, and would strengthen the State
Department's hand in negotiating for
the return of abducted children.

The Senate Judiciary Committee's
Subcommittee on Courts and Admin-
istrative Practice held hearings on S.
1347, to facilitate implementation of
the Hague Convention on the Civil
Aspects of International Child Ab-
duction. The Senate has already rati-
fied the Hague Convention; the legis-
lation would set specific procedures
to implement provisions of the Con-
vention, which was written in general
terms to take into account the differ-
ent legal systems of the signatory
countries. The legislation provides for
concurrent original jurisdiction in
state and federal courts to hear return
proceedings arising under the Con-
vention and the legislation; places the
burden of proving an exception to the
return obligation on the person op-
posing return; and specifies docu-

See LEGISLATION, page 8

Personnel

ORCUIT JUDGES
Confirmation

Paul R. Michel, U.S. Circuit Judge, Fed.
Cir., Feb. 29

Death

Luther M. Swygert, U.S. Circuit Judge,
7th Cir., Mar. 16

DISTRICT JUDGES
Nominations

Alex R. Munson, U.S. District Judge,
Northern Mariana Islands, Feb. 25

John C. Lifland, U.S. District Judge,
D.N.J., Feb. 29

James R. McGregor, U.S. District Judge,
W.D. Pa., Mar. 14

Confirmations

Rudy Lozano, U.S. District Judge, N.D.
Ind., Feb. 25

Stephen M. Reasoner, U.S. District
Judge, E.D. Ark., Feb. 25

Malcolm J. Howard, U.S. District
Judge, E.D.N.C, Feb. 25

Appointment

Malcolm J. Howard, U.S. District
Judge, E.D.N.C, Mar. 11

BANKRUPTCY JUDGES
Appointment

Peter W. Bowie, U.S. Bankruptcy
Judge, S.D. Cal., Mar. 2

Law Day To Be Observed May 1

May 1 is Law Day. This year's
theme is "Legal Literacy," encourag-
ing citizens to increase their knowl-
edge and understanding of the law.

The American Bar Association is
national coordinator of Law Day
USA, and offers a detailed planning
guide to assist individuals and or-
ganizations conducting Law Day pro-
grams. In addition, the ABA makes
available many promotional and edu-
cational materials. Further informa-
tion is available from Law Day USA,
American Bar Association, 8th Floor,
750 N. Lake Shore Dr., Chicago, IL
60611 (tel. 312/988-6134).

April 1988

theTHIRDbranch

JUDICIAL CONFERENCE, from p. 2
tion, community service, or any com-
bination of the three.

• adopted a resolution encouraging
the district courts to continue their
guideline training efforts and to spon-
sor programs that will also educate
the bar, whose knowledge of sentenc-
ing guidelines procedure is essential
to effective implementation.

• approved the establishment of the
recommended "special" and "gen-
eral" alternative attorney compensa-
tion rates under the Criminal Justice
Act, effective with respect to services
performed on or after the date of the
Judicial Conference action and subject
to the availability of funds.

• approved sustaining grants for
fiscal years 1988 and 1989 for the four
proposed death penalty resource cen-
ter/community defender organiza-
tions, subject to the availability of
funds. The approval was also contin-
gent upon each proposed organiza-
tion obtaining the state and other

nonfederal funds that the organiza-
tion has indicated are necessary to
finance the state component of its
proposed activities, and also contin-
gent upon final approval of all neces-
sary CJA plan amendments. (The
four proposed death penalty resource
center/community defender organi-
zatior\s would be in Mississippi, Ten-
nessee, North Carolina, and Georgia).

• voted that any judicial vacancy
lasting longer than 18 months will be
considered a judicial emergency, and
urged all judges nearing retirement to
notify the President and the AO as
far in advance as possible of an an-
ticipated change in job status. (As of
Mar. 15, 1988, there were 37 vacan-
cies on the district courts and 11 va-
cancies on the courts of appeals).

• reaffirmed its opposition to re-
quiring counsel's participation in voir
dire examination.

• took the following positions on
certain provisions of S. 1867, pro-
posed amendments to the Court In-

terpreters Act, 28 U.S.C. § 1827: op-
posed the proposed requirement that
eight unspecified languages be certi-
fied; opposed categorical requirement
of electronic sound recording of inter-
pretations; approved prepayment for
interpreting services at the court's
discretion; and approved providing a
uniform fee schedule for services.

• approved memorial resolutions
honoring the late Judge Carl
McGowan (D.C. Cir.) and the late
Judge Edward Weinfeld (S.D.N.Y.).l

LEGISLATION, from page 7

ments that need not be authenticated
or legalized. In the House, Rep. Tom
Lantos (D-Cal.) has introduced H.R.
3971 and H.R. 3972, bills to facilitate
the implementarion of the Conven-
tion. The Judicial Conference in
March 1986 recommended that litiga-
tion under the Convention be exclu-
sively in state courts. ■

AJ^ BULLETIN OF THE FEDERAL COURTS

theTHIRDbranch

Vol.20 No. 4 Aprill988

The Federal Judicial Center

1520 H Street, N.W.
Washington, DC 20005

Official Business

First
Class
Mail

Postage and

fees paid

United States

Courts

U.S. GOVERNMENT PRINTING OFFICE 1988-201-733-80002
AprU 1988

BULLETIN OF THE FEDERAL COURTS

.'V^

?\^i^

,0'^^

OLv^

rHETHIRD#APlc«

J)CC6

VOLUME 20
NUMBER 5
MAY 1988

Zenter Surveying Personal Computer Us^0i
Zhambers, Compiling Software Catalog

The Innovations and Systems Devel-
)pment Division of the Center is con-
lucting a survey of the use of personal
omputer software in the federal
ourts, with emphasis placed on the
urrent and anticipated uses of per-
onal computers in chambers. Informa-
ion sought from the survey includes: 1 )
dentification of commercially avail-
ible programs found to be particularly
)eneficial to the operation of the cham-
)ers; 2) identification of software pack-
iges developed in chambers or else-
vhere in the court that might be of
nterest to others; and 3) areas in which
here is a need or potential for the
ipplication of personal computer tech-
nology that would be beneficial to the
)peration of chambers. In addition to
hese areas, the survey will solicit infor-
nation about training and support
equirements for the efficient use of
personal computers and the programs
ised. A written questionnaire will be

distributed in May to the Clerk of each
district and circuit for use in collecting
the information from chambers.

The results of the survey will be used
to create a catalog of personal computer
software resources used in the federal
courts that might be of interest to other
members of the judiciary. It is antici-
pated that the initial publication of the
catalog will be distributed widely
within the judiciary and that periodic
updates will be provided. The catalog
will also be made available as a com-
puter data base to allow automated
searching of the descriptions of the
software packages identified. In addi-
tion to providing this clearinghouse
function for personal computer soft-
ware, the Center will provide limited
copying and distribution services for
court-developed software that is sub-
mitted by a court and requested by a
member of the federal judiciary for use
in the court or in chambers. ■

lules Would Implement Law Ending "Race to Courthouse"

[udicial Panel on Multidistrict Litigation Seeks
Comments on Multicircuit Appeals Rules

The Judicial Panel on Multidistrict
-itigation, chaired by Judge Andrew A.
laffrey (D. Mass.), has proposed new
ules relating to mulHcircuit appeals
inder the new law passed by Congress
o deal with the "race to the court-
house" situation, and is accepting
:omments on these proposed rules
inHl May 31. The new law. Pub. L. 100-
136, provides for random selection of
he circuit in which an appeal will be
leard when appeals from an agency
lecision are filed in more than one
:ircuit. It was signed by the President
)n Jan. 8, 1988 (see The Third Branch,
-ebruary 1988, at 7).

The proposed new rules include
■ules providing for the filing of a notice

of mul ticircui t petitions for review with
the Clerk of the Panel on Multidistrict
Litigation; for the service of notices; for
the form of such notices; and for the
method of random selection of the cir-
cuit by the Clerk of the Panel or a
designated deputy.

Copies of the proposed multicircuit
appeals rules can be obtained from the
Clerk of the Judicial Panel on Multidis-
trict Litigation, 1120 Vermont Ave.,
N.W., Suite 1002, Washington, DC
20005. They can also be found at 840
F.2d no. 2 at ci-cxvii. Comments on the
rules must be submitted in writing (in
original form with 13 copies), and re-
ceived no later than May 31, 1988, at the
above address. ■

Courts' Local Rules on
Sentencing Guidelines
Have Varied Emphases

Almost half of the district courts have
so far implemented local rules, orders,
and policy statements to accommodate
the special needs of guideline sentenc-
ing. Some of these documents have not
been formally adopted, pending re-
view by the bar or for other reasons.
Local procedures for guideline sen-
tencing vary from one district to an-
other.

Several procedures for sentencing
are prescribed by statute or federal
rules. Although the Sentencing Reform
Act of 1984 did not significantly change
the nature of sentencing proceedings, it
does provide that the presentence re-
port is to be disclosed at least 10 days
prior to the date set for sentencing,
unless the defendant waives this mini-
mum period (18 U.S.C. § 3552(d)). Fed-
eral Rule of Criminal Procedure 32
imposes other requirements, some of
which were added by the Sentencing
Reform Act. The Advisory Committee
on Criminal Rules of the Committee on
Rules of Practice and Procedure of the
Judicial Conference of the United
States is considering further revision of
rule 32 in light of guideline sentencing
and has solicited comments (see The
Third Branch, January 1988, at 2).

In formulating procedures for guide-
line sentencing, most courts have gen-
erally adopted the approach of the

See LOCAL RULES, page 2

Inside

1988-89 Judicial Fellows
named p. 3

Study of jury service in
lengthy trials published ... p. 5

Administrative Office
establishes Office of Planning
and Evaluation p. 7

theTHIRDbranch

LOCAL RULES, from page 1

proposed model local rule for guideline
sentencing that was circulated last
August to all U.S. circuit and district
judges by the former Probation Com-
mittee of the Judicial Conference (see
The Third Branch, January 1988, at 2).

The Sentencing Guidelines also con-
tain guidelines for sentencing proce-
dure in Part 6A and policy statements
for accepting guilty pleas and plea
agreements in Part 6B. The Probation
Committee's commentary accompany-
ing the model local rule took the posi-
tion that judges were free to follow the
procedures of the local rule rather than
those of the guidelines because "the
Sentencing Reform Act does not au-
thorize the Commission to prescribe
procedural rules." Some districts'
rules, however, adhere closely to the
Part 6A guidelines. Some courts have
adopted modified versions of the local
rule, or have blended the approach of
the model rule with that of Part 6A.

The major difference between the
approach of the guidelines and the
approach of the Probation Committee's
model local rule lies in the role of the
probation officer. The model local rule
assigns the probation officer a more
active role in assisting the court in iden-
tifying disputed issues among the par-
ties over facts or the application of the
statutes and guidelines to those facts.
Thus, the model local rule directs the
officer to consider objections of the
parties to the preliminary presentence

BULLETIN OF THE FEDERAL COURTS

01^

THeTHIRL BRANCH

Published monthly by the Administrative
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-edifors
Alice L. O'Donnell, Director, Division of
Inter-Judicial Affairs and Information
Services, Federal Judicial Center. Peter G.
McCabc, Assistant Director, Program
Management, Administrative Office of the
U.S. Courts.

Ma^f 1988

report, to revise the presentence report
as warranted by the parties' objectiorxs,
and to submit a revised presentence
report to the court. The model local rule
also provides for an addendum to the
presentence report, in which the officer
identifies those parts of the report still
disputed by either of the parties and
that provides the officer's comments.

Part 6A of the Sentencing Guidelines
contemplates that, in addition to the
presentence report filed by the proba-
tion officer, the parties will present
unresolved disputes over sentencing
facts and factors directly to the court.
Guideline § 6A1.3 further contem-
plates that the court may provide the
parties with its tentative findings on
disputed matters, perhaps prior to the
date of sentencing.

All of the rules increase the statutory
minimum number of 10 days between
the disclosure of the presentence re-
port and sentencing. Many courts have
adopted the 20-day minimum recom-
mended by the model local rule — 10
days for the parties to communicate
objections to the officer and an addi-
tional 10 days for the officer to revise
the report after receiving those objec-
tions.

The commentary accompanying the
model rule recommended that the pre-
sentence report be made part of the
record of the case, but that it be placed
under seal "in accordance with the
long-standing practice of treating pre-
sentence reports as nonpublic in view
of the sensitive and often confidential
information they contain." Neither the
model local rule itself, however, nor
the Sentencing Guidelines include any
specific provision on copying or fur-
ther disclosure of the report.

It would appear that a ma jori ty of the
courts' local rules do not specify
whether copying of the report is per-
mitted, or what further disclosure may
be made. A minority of the local rules in
force prohibit the copying of the pre-
sentence report and provide that par-
ties must return the report to the proba-
tion officer.

Under the old pre-Guidelines sys-
tem, the presentence report was not

included in the record on appeal unless
the presentence report was at issue.
Section (c)(2) of 18 U.S.C. § 3472 now
requires that it be included in the rec-
ord whenever a criminal appeal in-
cludes a challenge to the guideline
sentence. At least one circuit, the
Fourth, has adopted a policy according
to which the district court, if it wishes
the presentence report to be treated as
a confidential document, must trans-
mit the report to the Court of Appeals
under seal, and under which a party
wishing the report to be treated as
confidential must move the Court of
Appeals to seal it.

Some districts set a time period for
the preparation of the presentence re-
See LOCAL RULES, page i

THE BOARD OF THE
FEDERAL JUDICIAL CENTER

Chairman

The Chief Justice
of the United States

Judge Alvin B. Rubin

United States Court of Appeals

for the FifthCircuit

Judge J. Clifford Wallace

United States Court of Appeals

for the Ninth Circuit

Judge Jose A. Cabranes

United States District Court

District of Connecticut

Chief Judge William C. O'Kelley

United States District Court

District of Georgia

Judge David D. Dowd, Jr.

United States District Court

Northern District Of Ohio

Judge Robert E. Ginsberg

United States Bankruptcy Court

Northern District of Illinois

L. Ralph Mecham, Director

Administrative Office of the

United States Courts

Federal Judicial Center

Judge John C. Godbold, Director

Charles W. Nihan, Deputy Director

BULLETIN OF THE
FEDERAL COURTS

Vincent R. Johnson and Lane V, Sunderland
Zliosen As Judicial Fellows for 1988-1989

government from Claremont Graduate
School (1972). From 1972 to the present,
Mr. Sunderland has held various posi-
tions at Knox College, including Pre-
La w Advisor and Associate Dean of the
College of Academic Affairs. His schol-
arly interests have focused on constitu-
tional theory and the significance of the
Supreme Court in American govern-
ment, and he has published numerous
articles on these subjects. He served as
Director of Educational Programs for
the Commission on the Bicenteruiial of
the United States Constitution in 1986,
resigning that position in 1 987 to return
to teaching at Knox. Mr. Sunderland
has traveled to Europe to lecture on the
Constitution under the sponsorship of
the Council of Europe and the Atlantic
Council.

Patterned after the White House and
Congressional Fellowships, the Judi-
cial Fellows Program offers opportuni-
ties for highly talented professionals
with multidisciplinary backgrounds to
contribute to the federal system. ■

Calendar

May 1-4 Eleventh Circuit Judicial Confer-
ence

May 2-6 Supervisory Skills Seminar
May 3-6 Workshop for New Training Coor-
dinators

May 8-10 Seventh Circuit Judicial Confer-
ence

May 13 Federal Circuit Judicial Conference
May 13-14 Judicial Conference Advisory
Committee on Bankruptcy Rules
May 16-18 Jury Utilization Seminar
May 16-18 Workshop for Assistant Circuit
Executives

May 16-20 Seminar for Chief Probation/
Pretrial Clerks

May 18-20 Seminar for Bankruptcy Judges
May 19-20 Judicial Conference Advisory
Committee on Criminal Rules
May 22-24 D.C. Circuit Judicial Conference
May 23-27 Orientation Seminar for New
Probation/Pretrial Officers
May 27 Judicial Conference Committee of
the Pacific Territories
June 2-3 Judicial Conference Committee on
Administration of the Bankruptcy System

Legislation

Vincent R. Johnson and Lane V. Sun-
erland have been chosen as Judicial
ellows for 1988-1989. Vincent R.
Dhnson is a professor of law at St.
Gary's University School of Law in San
Antonio,
exas. He re-
eived a B.A.
rom St. Vin-
ent College in
975, a J.D.
rom Notre
)ame Law
choolinl978,
nd an LL.M.
•om Yale Law

choolinl979. Vincent Johnson

Ir. Johnson clerked forjudge Bernard
. Meyer at the New York Court of Ap-
eals from 1978 to 1980 and for Chief
idge Thomas E. Fairchild at the Sev-
nth Circuit from 1980 to 1982. Since
?82, he has taught at St. Mary's Uni-
ersity School of Law. The primary
)cus of his work has been tort law. He
as also become involved in the field of
igal ethics,
(aching a
)urse on pro-
issional re-
ponsibility
id lecturing
> judges
iroughout
2xas on judi-
al ethics. Mr.
•hnson is a
)founder and Lane Sunderland

iculty member of St. Mary's summer
w program at the University of
insbruck, Austria. He has served as
\e national chairman of the Teaching
lethods Section of the Association of
merican Law Schools.
Lane V. Sunderland is Chairman of
le Department of Political Science and
iternational Relations at Knox College
I Illinois. He holds a B.A. from Kansas
tate University (1967), an M.A. in
olitical science from the University of
Washington (1968), and a Ph.D. in

The following measures before Con-
gress are of interest to the judiciary.

• Rep. Robert W. Kastenmeier (D-
Wis.) introduced H.R. 4340, the
amended version of his earlier bill, H.R.
2586, to provide for enhanced retire-
ment and survivors' annuities for
bankruptcy judges and U.S. magis-
trates (see The Third Branch, April 1988,
at 3).

• Rep. JamesM. Jeffords (R-Vt.)inh-o-
duced H.R. 4309, a bill that would make
retroactive the survivor annuity pro-
gram improvements in Pub. L. 99-336,
the Judicial Improvements Act of 1985
(see The Third Branch, September 1986,
at 9). That law set a floor for judicial
survivors' benefits, but applied only to
survivors of judges who qualified after
Oct. 1,1986. H.R. 4309 would include as
beneficiaries of Pub. L. 99-336 surviv-
ing spouses of federal judges who
qualified before that date. Because the
number of affected persons is small, the
bill would "provide substantial assis-
tance to the surviving spouses ... at
very littie cost to the public," Rep. Jef-
fords stated. He had previously intro-
duced a similar bill in the 99th Con-
gress.

• S. 951, as amended, the bill to estab-
lish the Federal Courts Stiidy Commis-
sion, was ordered favorably reported
by the full Senate Judiciary Committee.

• The House has authorized the Com-
mittee on the Judiciary to spend
$725,000 for investigations and studies
of the two judicial impeachment pro-
ceedings presently before the Commit-
tee. Those proceedings involve Judge
Alcee L. Hastings (S.D. Ha.) and Judge
Walter L. Nixon, Jr. (S.D. Miss.).

As previously reported, the Judicial
Conference of the United States in
March certified that Judge Nixon has
engaged in conduct that might consti-
tute one or more grounds for impeach-
ment (see The Third Branch, April 1988,
at 1). On Mar. 17, following receipt of
the Judicial Conference's certitication.

See LEGISLATION, page 6

May 1988

theTHIRD branch

Noteworthy

Judicial immunity for judge's law
clerk upheld on appeal. The Second
Circuit has affirmed a district court
decision that a judge's law clerk is en-
titled to the protection of judicial
immunity. Oliva v. Heller, 839 F.2d 37
(2d Cir. 1988) (see The Third Branch,
January 1988, at 5).

House * -

Judiciary
Committee
Chairman
Rodino to
retire. Rep.
Peter W.
Rodino, Jr.
(D-N.J.) has
announced
that he will Rep. Rodino

retire at the end of his current term in
Congress. First elected to the House in
1948, Rep. Rodino became chairman of
the House Judiciary Committee in
1973.

Fifth Circuit holds district courts
not authorized to refer appeal from
bankruptcy court to magistrate. The
Fifth Circuit has held that 28 U.S.C. §
636 does not authorize the district
courts to refer to a magistrate an appeal
of a bankruptcy court decision. Minerex
Erdoel, Inc. v. Sina, Inc., No. 86-1449 (5th
Cir. Mar. 3, 1988). The court reviewed
the legislative history of the 1984 Bank-
ruptcy Amendments and Federal
Judgeship Act of 1984, and concluded
that Congress provided an intricate,
balanced, and elaborate scheme for
bankruptcy appeals in 28 U.S.C. § 158.
Under that scheme, appeals could be
taken either to the district court or to a
panel of bankruptcy judges. No other
kind of appeal was recognized or per-
mitted under the scheme, nor does the
legislative history indicate that any
other ty peof appeal wascontcmplatcd,
the court said. If Congress had meant
for its appeal scheme to include the
potential fora reference toa magistrate,
it would have expressly so provided,
the court said.
May 1988

Fourth Circuit holds public, press
have right of access to names on jury
venire list. The public and press have a
right to the names and addresses of
jurors selected for a trial, as well as the
names of the venirepersons from
whom the jury was selected, the Fourth
Circuit has held. In re Baltimore Sun, No.
87-1207 (4th Cir. Feb. 19, 1988). A
newspaper covering a criminal trial in a
district court requested access to the
venire list prepared by the clerk of
court. The list was used by the parties to
the trial in exercising their peremptory
strikes during jury selection. The list
contained information on all jurors
who were part of the venire; informa-
tion other than names was included on
the list for the convenience of the attor-
neys and parties, but was apparently
not required by any stahite or rule. The
information was taken from question-
naires filled out by the jurors. The dis-
trict court denied the newspaper's
request for the list, and the newspaper
applied to the Fourth Circuit for a writ

of mandamus. The Fourth Circuit held
that the information on the jury venire
list is protected from disclosure by 28
U.S.C. § 1867(f), because the section
protects the "contents of records oi
papers used by . . . the clerk in connec-
tion with the jury selection process."
After the jury has been selected, how-
ever, the Fourth Circuit held, the name;
and addresses of those jurors are a pari
of the public record, and the names and
addresses of those who have beer
stricken or otherwise not seated an
likewise a matter of public record. Th(
Fourth Circuit noted that it was no
basing its holding on either the Firs
Amendment or the Sixth Amendment
but rather on the discussion of the jun
system in Press-Enterprise Co. v. Superio
Court ofCal, 464 U.S. 501 (1984), whicl
held that the voir dire examination o
prospective jurors should ordinarily b
open to the public and the press, and oi
Press-Enterprise Co. v. Superior Court c
Cal. ("Press-Enterprise 11"), 106 S. C
2735 (1986). '

Positions Available

Chief Deputy Clerk, D. Mass. Salary to
$54,907. Applicant must have a minim um of
6 years progressively responsible admiius-
trative experience in public service or busi-
ness. Bachelor's degree in judicial admini-
stration, public or business administration,
political science, criminal justice, law, man-
agement, or related fields highly desirable.
Send resimies by June 1 to Clerk, U.S. District
Court, 1525 U.S. Courthouse, Boston, MA
02109 Attention: CDC-88.

Chief Deputy Clerk, 2d Cir. Salary
$54,907 to $71,377. Responsible to Qerk for
overall administration of office; acts for
Qerk in her absence. Requires undergradu-
ate degree in management; judicial, busi-
ness, or public administration; criminal jus-
tice; or political science. Minimum of six
years administrative or appropriate profes-
sional experience in public service or busi-
ness, demonstrated leadership ability, man-
agement skills. Graduate degree in law,
public or business administration may be
substituted for up to two years of experience.
Send resumes by May 30 to Elaine B. Gold-
smith, Qerk, U.S. Court of Appeals, 1702 U.S.
Courthouse, 40 Foley Square, New York, NY
10007.

U.S. Magistrate, W.D. Mo. Salary $72,500.

Jurisdiction specified in 28 U.S.C. § 636. Ap-
plicant must be member in good standing of
the bar of the highest court of Missouri; have
been engaged in the active practice of law for
at least 5 years (some substitution possible);
be less than 70 years old; not be related to a
judge of the W.D. Mo.; reside in the general
vicinity of Kansas City, Mo. AppUcations due
June 3. Application forms and further infor-
mation available from R.F. Connor, Qerk, U.S.
District Court, Room 201, 811 Grand Avenue,
Kansas City, MO 64106.

Assistant Director for Planning and
Evaluation, Administrative Office of the
U.S. Courts (Announcement No. 88-546).
Salary $72,500. Principal advisor to AO Di-
rector on program evaluation, assessment,
improvements, and planning. Applicants
must have managerial and technical qualifi-
cations and experience sufficient for the job.
For additional information, call (202) 633-
6116. Qosing date May 20. Applicants must
submit completed SF-171 (no resumes) and
one or more work-related letters of reference
and /or most recent annual performance ap-
praisal to Administrative Office of the U.S.
Courts, Personnel Div., Rm. 701, 81 1 Vermont
Ave., N.W., Washington, EX: 20544. Attn:
Stanley E. Riggenbach.

EQUAL OPPORTUNITY EMPLOYERS

BULLETIN OF THE
FEDERAL COURTS "rl*

Defendant Ordered to Pay Costs, Fees After ''Sham
Participation in Court-Ordered Arbitration

A district court has ordered the de-
endant airhne in a civil suit to reim-
)urse the plaintiffs for all costs and fees
hey incurred in preparing for and
)articipating in the court's compulsory
irbitration program, following a find-
ng by the arbitrator that the airline's
)articipation in the arbitration was a
'sham." Gillingv. Eastern Airlines, Inc.,
<Jo. 85-4917 (D.N.J. Mar. 2, 1988).

The plaintiffs sued the airline on a
ariety of civil counts after being re-
noved from their flight during a stop-
iver after incidents on board. General
'ule 47 of the District of New Jersey
equired referral of the matter to com-
•ulsory arbitration. The airline ap-
peared at the arbitration through coun-
el, but no witnesses for the airline
ppeared. The arbitrator found for the
ilaintiffs. Within the 30 days allotted
y rule 47(G)(1 ), the airline moved for a
rial de novo. Plaintiffs opposed the
lotion, contending that the airline's
iilure to participate meaningfully in
-le arbitration should cost i t the right to
emand a trial de novo. The court
emanded the case to the arbitrator for
factual finding on the question of the
leaningfulness of the airline's partici-
ation in the arbitration. The arbitrator
3und that the airline's attorney merely
went through the motions," reading a
;w interrogatories and parts of depo-
ition transcripts, and that 95 percent of
er participation was stating position
nd fact summaries.

General Rule 47(E)(3) provides that
in the event that a party fails to partici-
ate in the arbitration process in a
leaningful manner, as determined by
16 arbitrator, the Court may impose
ppropriate sanctions, including, but
ot limited to, the striking of any de-
mand for a trial de novo filed by that
arty."

The court found that the rule "ap-
ears to place the determination of
leaningfulness entirely in the hands
nd discretion of the arbitrator," with-
ut setting any standard of review of

the arbitrator's findings. The court
concluded that the arbitrator's finding
that the airline's participation in the
arbitration was not meaningful "was
supported by substantial evidence and
was not clearly erroneous."

The airline argued that denying its
demand for a trial de novo would
deprive it of its constitutional right to a
jury trial and conflict with the Federal
Rules of Civil Procedure. The court
held that it need not reach that constitu-
tional claim, noting that while the
"extreme sanction [of striking a de-
mand for a trial de novo] may be appro-
priate where a party absolutely refuses
to participate in or even attend arbitra-
tion, . . . the court declines to deprive
defendants of their day in court be-
cause of their limited performance at
arbitration, without in any way con-
doning it." The court ordered the air-
line to reimburse plaintiffs for all costs
and fees incurred in preparing for and
participating in the arbitration, as well
as those incurred in opposing the
demand for a trial de novo. "[C]ounsel
should be on notice that a trial de novo
will not be automatically permitted in
those cases in which the party seeking it
views the arbitration proceeding
merely as a meaningless interlude in
the judicial process," the court said. ■

HE PURGE

The publications listed below may be of
interest to readers.

Bonventre, Vincent Martin. "A Classical
Constitution: Ancient Roots of Our Na-
tional Charter." 59 New York State Bar], no.
8 at 10 (Dec. 1987).

Brazil, Wayne D. "From the Bench:
Making the Opening Settlement Offer." 14
Litigation no. 2 at 3 (Winter 1988).

Bremer, Celeste F., and W. Scott Simmer.
"One Day in Court: Suggestions for Imple-
menting Summary Jury Trials in Iowa." 36
Drake L. Rev. 297 (1986-1987).

Carroll, Stephen J., et al. Assessing the
See SOURCE, page 7

Center Releases Report on

Jury's Role in Lengthy

Civil Trials

Concern over the role of the jury
in lengthy civil trials has focused
on the characteristics of the jurors,
the burdens of lengthy jury service,
and the ability of jurors todeal with
massive amounts of evidence. A
new report by the FJC, Jury Service
in Lengthy Civil Trials, by Joe S.
Cecil, E. Allan Lind, and Gordon
Bermant, addresses the differences
in the characteristics and experi-
ences of jurors serving in lengthy
civil trials and jurors serving in
similar trials of shorter duration.

The report indicates that jurors
serving in lengthy trials were more
likely to be unemployed or retired,
to be unmarried, to be women, and
to lack a college education. While
statistically significant, these dif-
ferences in demographic charac-
teristics were small in magnitude.
Although the jurors in both long
and short civil trials indicated
some disruption in their normal
lives, more than 80 percent indi-
cated that they would be willing to
serve if they were called for jury
service again. Jurors found the evi-
dence difficult to understand at
times, and jurors in long trials were
more likely to report experiencing
difficulty with the evidence. Jurors
in long trials also were more likely
to indicate difficulty with the jury
instructions. Despite these differ-
ences, it appears that jurors in
lengthy civil trials experience less
burden than expected, find the evi-
dence to be difficult but manage-
able, and deliberate in a manner
that is conducive to arriving at a
reasoned and principled decision.
Copies of the report can be ob-
tained from Information Services,
1520 H St., N.W., Washington, DC
20005. Please send a self-addressed
mailing label, preferably franked
(4 oz.), but do not send an enve-
lope.

May 1988

theTHIRC branch

CALR Guidelines for

Computer Use by Judges in

Chambers Approved

The Judicial Conference recently
approved new guidelines for the ex-
pansion of computer assisted legal re-
search (CALR) into chambers. The
Conference approved access to LEXIS
in chambers for judges and magis-
trates who have LEXIS-compatible PC
equipment and who are willing to
cancel at least $1,000 of their armual
library costs.

Under the guidelines, CALR will be
offered to those judicial officers who
have existing equipment in chambers
capable of accessing LEXIS without
upgrading or replacing equipment,
except for modems and data commu-
nication lines.

Although the Vive-Year Flan for
Automation of the U.S. Courts envisions
providing CALR in all chambers, it
cannot be done at this time because of
budget constraints.

I ERSONNEL

ORCUIT JUDGES
Nomination

Judith R. Hope, U.S. Circuit Judge, D.C.
Cir., Apr. 14

Confirmations

Emmett R. Cox, U.S. Circuit Judge, 11th
Cir., Apr. 15

David M. Ebel, U.S. Circuit Judge, 10th
Cir., Apr. 19

Resignation

Robert H. Bork, U.S. Circuit Judge, D.C.
Cir., Feb. 5

DISTRICT JUDGES
Nominations

William H. Erickson, U.S. District Judge,
D. Colo., Mar. 23

Karl S. Forester, U.S. District Judge, E.D.
Ky., Mar. 30

Simeon T. Lake III, U.S. District Judge,
S.D. Tex., Mar. 30

William C. Cambridge, U.S. District
Judge, D. Neb., Apr. 13

See PERSONNEL, page 7

LEGISLATION, from page 3

Rep. Peter Rodino, Jr. (D-N.J.), Chair-
man of the House Judiciary Commit-
tee, joined by Reps. Don Edwards (D-
Cal.),HamiltonFish,Jr.(R-N.Y.),andF.
JamesSensenbrenner,Jr.(R-Wis.) as co-
sponsors, introduced H. Res. 407, call-
ing for the impeachment of Judge
Nixon. Judge Nixon is presently in
prison serving concurrent sentences
for conviction on two counts of perjury,
and has indicated that he will not re-
sign. Prior to receiving the Judicial
Conference's certificate concerning
Judge Nixon, the House had author-
ized the expenditure of $350,000 by the
Committee on the Judiciary for im-
peachment investigation and study.
On Mar. 29 the Subcommittee on Ac-
counts of the House Administration
Committee reviewed Rep. Rodino's
justification for additional funding for
impeachment investigation and stud-
ies, and on Mar. 30 the Hou se passed H.
Res. 408, as amended, authorizing an
additional $375,000 to be provided to
the Committee on the Judiciary for such
purposes. According to Rep. Joseph M.
Gaydos (D-Pa.), the additional
$375,000 "should enable the Judiciary
Committee to hire temporary staff and
to meet necessary travel, witness, tele-
phone, supply, and equipment ex-
penses" arising out of the Nixon inves-
tigation.

• The Senate passed S. 952, a bill to
provide the Supreme Court with
greater discretion in deciding which
cases it will review. The bill would sub-
stantially eliminate the Court's manda-
tory jurisdiction. The majority of cases
subject to mandatory jurisdiction are
those in which (1) a lower federal court
invalidates an act of Congress in pro-
ceedings in which the United States is a
party;(2)acourtofappealsholdsastate
statute invalid because it violates the
Constitution, treaties, or laws of the
United States; and (3) the highest court
of a state has either held a treaty or
statute of the United States invalid or
upheld the validity of a state statute in
the face of a constitutional challenge. S.
952 would provide for review of such

cases by certiorari. An omnibus court
reform bill pending in the House, H.R.
3152, also contains a provision to elimi-
nate the Court's mandatory jurisdic-
tion (see The Third Branch, October
1 987, at 1) . The concept of a f f ordi ng the
Court greater discretion in deciding
which cases it will review has been
supported by Chief Justice Rehnquist
and former Chief Justice Burger, the
Judicial Conference, the Department of
Justice, and the ABA. Efforts to enact
such a measure have been made {peri-
odically for almost a decade.

• The House has passed H.R. 3971, an
act to establish procedures for imple-
menting the 1980 Hague Conventior
on the Civil Aspects of Internationa
Child Abduction (see The Third Branch
April 1988, at 7-8). The Senate alsc
passed the bill, after amending a sec
tion of it to make clear that state anc
U.S. district courts will have concur
rent original jurisdiction over action
arising under the convention. Durinj
debate on the Senate amendment, Ser
Alan Dixon (D-111.) stated that the bil
has been carefully drafted to avoid th
possibility "that these cases woul(
embroil the Federal courts in decidin;
child custody matters." He noted that
section of the bill provides that "th
[Hague] convention and this act em
power courts in the United States t
determine only rights under the cor
vention and not the merits of any ur
derlying child custody claims." Ser
Orrin Hatch (R-Utah) noted that th
Judicial Conference, the Conference c
Chief Justices, and the Justice Deparl
ment favor vesting in the state court
exclusive jurisdiction of all legal ac
tions under the Hague Convention. H
pointed out that while "child custod
has traditionally been a State coui
matter, the interpretation of treatie
with foreign countries is a responsibi
ity of the federal courts under section
of article 111 of the Constitution," an
that "the issues of treaty interpretatio
and child custody are inseparabl
combined." Sen. Paul Simon (D-IU
and Sen. Dixon noted that the Hagu
See LEGISLATION, page

May 1988

BULLETIN OF THE
FEDERAL COURTS

ERSONNEL, from page 6

Richard A. Schell, U.S. District Judge,
D. Tex., Apr. 13

snfinnations

Bernard A. Friedman, U.S. District

dge, E.D. Mich., Mar. 31

Kenneth M. Hoyt, U.S. District Judge,

D. Tex., Mar. 31

Jack T. Camp, Jr., U.S. District Judge,

D. Ga., Apr. 19

Bernard A. Friedman, U.S. District

dge, E.D. Mich., Apr. 19

Emilio M. Garza, U.S. District Judge,

.D. Tex., Apr. 19

Lowell A. Reed, U.S. District Judge, E.D.

., Apr. 19

Kimba M. Wood, U.S. District Judge,

D.N.Y., Apr. 19

Thomas S. Zilly, U.S. District Judge, W.D.

ash., Apr. 19

fvations

[ames DeAnda, Chief Judge, S.D. Tex.,
ir. 21

rhomas C. Piatt, Jr., Chief Judge,
3.N.Y., Mar. 31

tirement

ohn L. Kane, Jr., U.S. District Judge, D.
Ic, Apr. 4

aths

Raymond E. Plummer, U.S. District

Ige, D. Alaska, Dec. 26

-red M. Taylor, U.S. District Judge, D.

iho, Feb. 16

A^illiam Harold Cox, U.S. District Judge,

). Miss., Feb. 25

imination Withdrawn

Mfred C. Schmutzer, Jr., U.S. Dish-ict
Ige, E.D. Tenn., Mar. 28

NKRUPTCY JUDGES
pointments

Arthur M. Greenwald, U.S. Bankruptcy

Ige, CD. Cal, Mar. 9

{obin L. Riblet, U.S. Bankruptcy Judge,

). Cal., Mar. 30

Uan M. Ahart, U.S. Bankruptcy Judge,

). Cal., Apr. 4

Cathleen T. Lax, U.S. Bankruptcy Judge,

). Cal., Apr. 4

-eslie J. Tchaikovsky, U.S. Bankruptcy

'ge, N.D. Cal., Apr. 14

-ynne Riddle, U.S. Bankruptcy Judge,

). Cal., Apr. 15

'incent P. Zurzolo, U.S. Bankruptcy

ge, CD. Cal., Apr. 18

AO Director Mecham Announces Establishment
Of Office of Planning and Evaluation

Director L. Ralph Mecham has an-
nounced the establishment within the
AO of the Office of Planning and
Evaluation. The essential purpose of
the new office will be to assist in the
delivery of support services to the
judiciary through enhanced planning,
coordination, and resource manage-
ment. In addition, the new office will
conduct periodic reviews of the AO's
ongoing programs and will help to
develop and implement the
judiciary's work measurement sys-
tems.

"Both prior to, and since my ap-
pointment as Director of the Admin-
istrative Office, a number of Judicial
Officers and employees have sug-
gested that the Administrative Office
needed to improve its planning and
evaluation capability. I, too, recog-

SOURCE, from page 5

Effects of Tort Reforms. Rand Corp., 1987.

Colburn, Don. "The Jury That Knew Too
Much — ^Jurors Are Sometimes Asked to
Disregard Things They Know— But Can
They?" Washington Post, Apr. 12, 1988,
Health Section, p. 7.

Committee on Federal Legislation. "An
Analysis of the Need for Legislation to
Remedy Grand Jury Irregularities." 43 The
Record of the Association of the Bar of the City
of New York 35 {\988).

Committee on Federal Legislation. "A
Proposal for Federal Legislation to Facili-
tate the Testimony of Child Witnesses." 43
The Record of the Association of the Bar of the
City of New York 54 (1988).

Copple, Robert F. "From the Cloister to
the Street: Judicial Ethics and Public Ex-
pression." 64 University of Denver L. Rev.
549 (1988).

Craig, Barbara Hinkson. Chadha—The
Story of an Epic Constitutional Struggle.
Oxford University Press, 1988.

"The Federal Courts Since 1787: Stability
and Change in 200 Years" (Panel discus-
sion, including Judge Stephen Reinhardt
(9th Cir.)). 71 Judicature 116 (1987).

Federal Sentencing Guidelines Manual.
West Publishing Co., 1988.

Fitzpatrick, Collins T. "Misconduct and
Disability of Federal Judges: The Uru-e-

nized the desirability of such a capa-
bility. . . . Given the present shortage
of resources, and the expectation that
resource constraints will continue, es-
tablishment of a strong planning ca-
pability is essential if the Administra-
tive Office is to continue to provide
adequate service to the Judiciary,"
Director Mecham said.

Recruitment to fill the position of
Assistant Director for Planning and
Evaluation will commence immedi-
ately, Mr. Mecham said. Pending the
selection of a permanent director of
the office, Clarence "Pete" Lee will
serve as Acting Assistant Director for
Planning and Evaluation and will
lead a task force to implement the
reorganization. (For position an-
nouncement describing application
procedure, see page 5). ■

ported Informal Responses." 71 Judicature
282 (1988).

In Memoriam: Wade H. McCree, Jr. 32
Law Quadrangle Notes no. 1, at 3 (Fall 1987).

Kaufman, Irving R. "Electoral Integrity
vs. Free Speech." The New York Times, Mar.
7, 1988,atA19.

Mikva,AbnerJ."AReplytoJudgeStarr's
Observations." 1987 Duke L.J. 380 (see infra
under Starr).

Miner, Roger J. "The Tensions of a Dual
Court System and Some Prescriptions for
Relief." 51 Albany L. Rev. 151 (1987).

Moynihan, Cornelius J., Jr. "Making
Greater Use of Federal Magistrate Civil
Jurisdiction." 35 Federal Bar News & J. 35
(1988).

Ripple, Kenneth F. "On Becoming a
Judge." 34 Federal Bar News & J. 380 (1987).

Rotunda, Ronald D. "Remembering
Judge Walter R. Mansfield." 53 Brooklyn L.
Rev. 271 (1987).

Starr, Kenneth W. "Observations About
the Use of Legislative History." 1987 Duke
L.J. 371 (see supra under Mikva).

Weis, Joseph F., Jr., and Gordon Ber-
mant. "Automation in the Federal Courts:
Progress, Prospects and Problems." 26
Judges' J. no. 4, at 14 (Fall 1987).

Zimmer, Markus B. "Promoting Team
Management in Federal Trial Courts." 71
Judicature 215 (1988).

May 1988

theTHIRDbranch

LEGISLATION, from page 7
Convention and the implementing leg-
islation leave custody decisions con-
cerning abducted children to local
courts and authorities, while provid-
ing a mechanism for the child's prompt
return to the country of the child's
habitual residence.

• Rep. Rodino introduced H.R. 4243,
to implement the International Con-
vention on the Prevention and Punish-
ment of Genocide.

• Rep. Kastenmeier introduced H.R.
4238, to authorize appropriations for
carrying out the activities of the State
Justice Institute for FY 1989, 1990, and
1991, with authorization levels of $15
million, $15 million, and $20 million,
respectively. He noted that the
Institute's program guideline for both
FY1987 and 1988 designated projects
that would "improve the administra-
tion of justice in the State courts and at
the same time . . . reduce the work
burdens of the Federal courts" as being

of "special interest" to the Institute. The
guideline cited the following areas as
particularly suited for such projects:
state court civil cases where a party is
also subject to a federal bankruptcy
proceeding; the adjudicahon of federal
law questions by state courts; and bet-
ter allocation of judicial burdens be-
tween state and federal courts. Rep.
Kastenmeier noted that the Institute, in
its first round of FY1987 funding,
funded a number of projects that
should be of "substantial value to the
Federal courts," and that many of the
proposals in its final FY1987 funding
round also seek to conduct research or
demonstration projects in state courts
that would benefit the federal courts,
• The House passed the Federal
Employee Leave Transfer Act, H.R.
3757, a bill that would permit federal
employees to donate annual leave to
co-workers who face a prolonged ab-
sence from work due to a personal
emergency. ■

LOCAL RULES, from page 2
port. The period between plea or ver-|
diet and sentencing varies from no
more than 60 days in some districts to
no less than 90 days in one district.
Almost all of the rules authorize the
judge to modify the time period foi
good cause.

Rulesdiffer in the variousprocedure:

they establish for the form and manne;

of filing objections to the presenteno

report; in setting out a standard o

proof; in the disposition to be made c

the presentence report after sentencin;

or if an appeal is taken; and on othe

matters. ]

The legislation authorizing and giv

ing effect to the Sentencing Guideline

significantly expands the grounds it

appellate review of criminal sentence

A future Third Branch article will di:

cuss rules, orders, and procedun

adopted by the courts of appeals k

handling appeals from guideline sei

tences.

BULLETIN OF THE FEDERAL COURTS

THE 1 HIKUBRANCH

First
Class
Mail

Vol.20 No. 5 May 1988

The Federal Judicial Center

1520 H Street, N.W.
Washington, DC 20005

Official Business

Postage an
fees paid
United Stat
Courts

U.S. GOVERNMENT PRINTING OFFICE 1988-201-733-80003
May 1988

0, ^U

BULLETIN OF THE FEDERAL COURTS

nVTi DOC

rHETHIRDBRANCH

VOLUME 20
NUMBER 6
JUNE 1988

ongress Weighs Impeachment Study Bill,
ankruptcy Judges' and Magistrates' Benefits

rhe following measures before
ngress are of interest to the judici-
r.

• Rep. Robert Kastenmeier (D-Wis.)
reduced H.R. 4393, the Judicial
jcipline and Impeachment Reform
t of 1988, a bill to amend provi-
ns of 28 U.S.C. relating to judicial
dpline. The bill would establish a
member commission to study for
2 year the constitutional issues
'olved in the impeachment of an
tide III judge and then to report on
lether changes are needed. (A joint
olution introduced in the House in
J7, H.R.J. Res. 364 (see The Third
inch, November 1987, at 3) pro-
ses amending the Constitution to
rmit bodies in the judicial branch to
nove judges for cause.)

• H.R. 4340, providing enhanced re-

tirement and survivors' benefits for
bankruptcy judges and magistrates
(see The Third Branch, May 1988, at 3),
was reported by the House Judiciary
Committee.

• H.R. 3971, establishing procedures
to implement the 1980 Hague Con-
vention on the Civil Aspects of Inter-
national Child Abduction, was signed
by the President on Apr. 19 as Pub. L.
100-300.

• S. 952, a bill giving the Supreme
Court greater discretion in deciding
what cases it will review, was re-
ported by the House Judiciary Com-
mittee.

• The House Judiciary Committee's
Subcommittee on Courts, Civil Liber-
ties, and the Administration of Jus-
tice, chaired by Rep. Kastenmeier,

See LEGISLATION, p. 2

enter Prepares Additional Materials for
Guideline Training of Court Personnel, Bar

lie Federal Judicial Center is de-
oping additional resources for use
guideline sentencing training in the
trict courts. These include video
)grams depicting a presentence
>ort conference between a proba-
n officer and counsel and the sub-
[uent sentencing hearing in the
ne fictitious case. A set of these
leo programs and related written
terial was shipped in mid- April to
h district court, in care of the pro-
ion office.

n cooperation with the Defender
vices Division of the Administra-
2 Office, the Federal Judicial Cen-
is also producing a training pack-
? especially for defense attorneys
t district courts may use in spon-
ing seminars for panel attorneys
i other members of the defense bar
their districts. AO Director L.
Iph Mecham recently provided

chief judges more information about
the dissemination of this package,
which consists of four video pro-
grams, written materials, and sugges-
tions for the materials' use. The video
programs cover Statutory Changes,
Basic Guidelines Application and
Departures, Multiple Counts and
Criminal History, and Appeals.

The Judicial Conference of the
United States adopted a resolution on
Mar. 15, 1988 that encourages district
courts to "continue their guideline
training efforts and to sponsor pro-
grams that will also educate the bar,
whose knowledge of sentencing
guideline procedures is essential to
effective implementation." About
5,000 judges, probation officers, other
court personnel, and members of the
bar participated in over 200 in-district
guideline orientation programs from
October 1987 through March 1988. ■

Judge Richard J.
Daronco Slain at
Home in New York

Judge Richard J. Daronco
(S.D.N.Y.) was fatally shot at his
home in Pelham, New York, on May
21. Immediately after the slaying, the
killer, the father of a litigant in a case
that had been before Judge Daronco,
committed suicide.

Judge Daronco's death marked the
second time this century that a fed-

Don Hogan Charles/NYT PICTURES

eral judge has been assassinated. Dis-
trict Judge John H. Wood, Jr.,
(W.D.Tex.) was slain in May of 1979.

Judge Daronco, nominated by
President Reagan Jan. 2, 1987, took
his seat on the bench June 8, 1987.
Prior to becoming a federal judge, he
served in the state judiciary of New
York— from 1971 to 1974 as a family
court judge, and from 1974 to 1979 as
a county judge on the Westchester
County Court. From 1979 he was a
Supreme Court Justice for the Ninth
Judicial District of New York.

Judge Daronco was born in New
York City in 1931 and graduated
from Providence College and Albany
Law School. He served in the U.S.
Army, and then was engaged in the
practice of law in White Plains, N.Y.
from 1958 until 1971.

Judge Daronco is survived by his
wife, Joan Q'Rouykji^^T)aronco, and
five children. ■

JUN

:ral deposit

theTHIRDbranch

LEGISLATION, from page 1
continued markup of H.R. 3152, the
Court Reform and Access to Justice
Act of 1987 (see The Third Branch,
October 1987, at 1). The bill includes
numerous features that have been
proposed by the Judicial Conference
in the past. Among the bill's features
are court-annexed arbitration provi-
sions, pay raises for circuit execu-
tives, elimination of the Board of
Certification for Circuit Executives, a
number of proposals affecting jury
selection, provision for the establish-
ment of a foundation that could ac-
cept gifts on behalf of the Federal
Judicial Center, and other amend-
ments relating to the FJC. The sub-
committee approved an amendment
by Rep. Benjamin L. Cardin (D-Md.)
that would eliminate federal diversity
jurisdiction. This amendment re-
placed a provision in the bill that
would have raised the jurisdictional
amount in diversity cases from the
present $10,000 to $50,000.

• The Criminal Justice Subcommit-
tee of the House Judiciary Committee
held hearings regarding the impeach-
ment resolution in the matter of
Judge Alcee L. Hastings (S.D. Fla.)
(see The Third Branch, November
1987, at 9).

• Rep. Lynn M. Martin (R-111.) intro-
duced H.R. 4576, to amend title VII of
the Civil Rights Act of 1964 to pro-
hibit in the legislative or judicial
branches of the federal government
employment discrimination based on

BULLETIN OF THE FEDERAL COURTS

THE THIRDbranch

Published monthly by the Administrative
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 Information
Services, Federal Judicial Center. Peter G.
McCab>c, Assistant Director, Program
Management, Administrative Office of the
U.S. Courts.

Calendar

June 2-3 Judicial Conference Commit-
tee on the Administration of the Bank-
ruptcy System

June 3 Judicial Conference Committee
on Intercircuit Assignments

June 6-10 Financial Investigations:
Training-for-Trainers

June 6-12 Fordham Graduate Program
for Probation Officers

June 7-8 Judicial Conference Commit-
tee on Judicial Resources

June 12-25 National Criminal Defense
College Trial Practice Institute, Session I

June 13-14 Judicial Conference Com-
mittee on Space and Facilities

June 13-15 Workshop for Clerks of
District Courts

June 13-17 Seminar for Pretrial Chiefs
and Supervisors

June 15-17 Judicial Conference Com-
mittee on Defender Services

June 16 Seminar for Sr. Staff Attorneys

June 19-24 Orientation Semir\ar foi
Newly Appointed Bankruptcy Judges
Section II

June 20-21 Judicial Conference Com
mittee on the Administration of th(
Magistrates System

June 20-23 Video Orientation Semina
for Newly Appointed District Judges

June 22-24 Judicial Conference Com
mittee on Criminal Law and Probatioi
Administration

June 22-24 Seminar for Magistrates o
the Sixth, Seventh, and Eighth Circuits

June 23 Judicial Conference Commit
tee on the Judicial Branch

June 27-28 Judicial Cor\ference Com
mittee on Court Security

June 27-28 Judicial Conference Corr
mittee on Federal-State Jurisdiction

June 27-29 Judicial Conference Coir
mittee on Judicial Improvements

June 27-29 Training Coordinators fc
Fourth and Tenth Circuits

June 30-July 2 Fourth Circuit Judicii
Conference

race, color, religion, sex, handicap,
national origin, or age. The bill would
establish an employment review
board composed of senior federal
judges, which would have authority
to adjudicate claims regarding such
discrimination.

• Sen. Pete Wilson (R-Cal.) intro-
duced S. 2251, a bill to provide the
death penalty for the killing of any
federal, state, or local law enforce-
ment officer or corrections officer
involved in drug law enforcement.

• Rep. Thomas J. Manton (D-N.Y.)
introduced H.R. 4278, to amend the
Controlled Substances Act to provide
for the imposition of the death pen-
alty for the intentional killing of a law
enforcement officer and for certain
continuing criminal enterprise drug
offenses. The bill would provide the
death penalty for the murderer of a
law enforcement officer and for the
"drug kingpin" who orders the kill-
ing of any individual. Sen. Alphonse
M. D'Amato (R-N.Y.) introduced a
companion measure, S. 2206.

• Rep. Don Sundquist (R-Tenn.) in-
troduced H.R. 4289, to amend title 18
to provide penalties for knowingly

engaging in conduct that is likely I
transmit AIDS.

• The Senate Judiciary Committee
Subcommittee on Courts and Admii
istrative Practice held hearings on :
1961, to establish a uniform system (
procedures to facilitate the collectic
of debts owed to the United States.

• The Senate Committee on Vete
ans Affairs held hearings on S. 11, tl
Veterans Administration Procedui
and Judicial Review Act, introduce
by Sen. Alan Cranston (D-Cal.). Tl
bill would authorize judicial revie
of certain financial decisions of tl
Administrator of Veterans' Affai
and provide for the payment of re
sonable attorneys' fees in Veterai
Administration cases. The Committ(
also held hearings on S. 2292, intn
duced by Sen. Frank H. Murkows
(R-Alaska), which would provide f(
judicial review of rulemaking by tl
Veterans' Administration and wou
allow attorneys' fees.

Judges Stephen S. Breyer (1st Cii
and Morris S. Arnold (W.D. Arl
testified at the hearing on behalf

See LEGISLATION, page

June 1988

BULLETIN OF THE i-H
FEDERAL COURTS 4P

himmary Jury Trial
Requirement Upheld by
:.D. Kentucky

The district court has the power
indcr a local rule to order parties to
•articipate in nonbinding summary
jry trials, the Eastern District of
Kentucky has held. Williams v. Hall,
Jo. 84-149 (E.D. Ky. Apr. 5, 1988).
'he decision is contrary to the recent
pinion of the Seventh Circuit in
trandell v. Jackson County, 838 F.2d
84 (7th Cir. 1988) (see The Third
'ranch, March 1988, at 3).

The plaintiffs in Williams claimed
lat the defendant company had dis-
harged them due to their unwilling-
ess to cooperate in schemes that
mounted to the bribery of foreign
fficials. The case was set for a six-
/eek trial. Over the plaintiffs' objec-
on, the court ordered a five-day
ummary jury trial under local rule
3 of the Joint Local Rules for the U.S.
)istrict Courts of the Eastern and
Western Districts of Kentucky. That
ule provides that "[a] judge may, in
is discretion, set any civil case for
Limmary jury trial or other altema-
ve method of dispute resolution."
ifter the Seventh Circuit's decision in
trandell, the Williams plaintiffs
loved for reconsideration of the
rder setting their case for summary
iry trial.

The court found that the local rule
.'as intended to authorize mandatory
ummary jury trial. Fed. R. Civ. P. 83
uthorizes district courts to adopt
Kal rules consistent with the federal
Liles. The Supreme Court has upheld
le validity of local rules that are not
utcome-determinative, the court
otcd. Thus, case law has upheld the
alidity of local rules requiring man-
atory arbitration, and even of a local
ule requiring mandatory mediation
nd providing for sanctions in the
vent a party did not better its posi-
on at trial by 10 percent over the
valuation set by the mediators. "A
ee SUMMARY JURY, page 8

Senate Judiciary Committee Approves Bill
Banning Weapons in Federal Courthouses

15,000 Illegal Weapons Found at Federal Courts' Doors in '87

The Senate Judiciary Committee
recently approved legislation pro-
posed by the U.S. Marshals Service
that would prohibit the possession of
firearms and other dangerous weap-
ons in federal courthouses. The meas-
ure was included by the committee as
a part of S. 2180, the Undetectable
Firearms Act of 1988.

Stanley E. Morris, Director of the
U.S. Marshals Service, said that the
legislation was proposed to help
"combat a disturbing trend" in the
number of dangerous weapons dis-
covered by court security officers at

lating that regulation is only 30 days'
incarceration and a $50 fine. For an
appropriate criminal sanction to ap-
ply given "the absence of meaningful
federal law," Mr. Morris said, per-
sons attempting to carry weapons
into federal courtooms must be ar-
rested and charged under state law.
"This resort to state law makes for a
lack of uniformity among the 94 fed-
eral judicial districts which the Mar-
shals serve, both in terms of the pro-
cedures our personnel must follow
upon detecting a weapon and the
certainty and severity of punishment

"These figures are especially ominous in light of the
increasing frequency of highly sensitive federal trials
involving major drug traffickers, terrorists, and other
extremely dangerous criminals."

Stanley E. Morris, Director, U.S. Marshals Service

courthouse entrances. Last year
alone. Marshals Service court security
officers prevented more than 75,000
weapons — over 15,000 of which were
illegally possessed — from being car-
ried into federal courtrooms, accord-
ing to Mr. Morris. "These figures are
especially ominous in light of the in-
creasing frequency of highly sensitive
federal trials involving major drug
traffickers, terrorists, and other ex-
tremely dangerous criminals," Mr.
Morris said.

There is currently no federal crimi-
nal statute that specifically prohibits
the possession of a dangerous
weapon in a federal courthouse. The
only federal law relating to the sub-
ject is a General Services Administra-
tion regulation that prohibits the pos-
session of weapons on federal prop-
erty. The maximum penalty for vio-

for offenders," Mr. Morris said.

S. 2180 would make the carrying or
attempted carrying of a firearm or
other dangerous weapon, such as a
bomb or long-bladed knife, into a
federal courthouse punishable by up
to one year in jail and a $100,000 fine.
Possessing, or attempting to possess,
such a weapon in the courtroom itself
or in offices or areas that provide ad-
ministrative or operational support
for the court — including the judge's
chambers, clerk's office, and U.S.
Attorney's and Marshal's offices —
would be a felony punishable by im-
prisonment for up to two years and a
fine of up to $250,000. Possession of a
firearm or other dangerous weapon
in a courthouse with intent to use the
weapon to commit a crime would be
punishable by up to five years' im-
prisonment and a felony-level fine. ■

]une 1988

theTHIRDbranch

Noteworthy

Seventh Circuit holds that judge need
not recuse himself because of son's rep-
resentation of party in unrelated matter.

The Seventh Circuit has held that a dis-
trict judge properly refused to recuse
himself in a case where the judge's son, a
lawyer, had represented the petitioners'
insured for about a month on an unre-
lated matter. In re National Union Fire Ins.
Co. of Pittsburgh, 839 F.2d 1226 (7th Cir.
1988). After the judge refused to recuse
himself, counsel for insurers filed a peti-
tion for a writ of mandamus, seeking his
removal on the ground that his "imparti-
ality might reasonably be questioned"
under 28 U.S.C. § 455(a). The judge's son
had been hired by the petitioners' in-
sured, a bank, to represent it in a transac-
tion other than the matter before the

THE BOARD OF THE
FEDERAL JUDICIAL CENTER

Chairman

The Chief Justice
of the United States

Judge Alvin B. Rubin

United States Court of Appeals

for the Fifth Circuit

Judge J. Clifford Wallace

United States Court of Appeals

for the Ninth Circuit

Judge Jose A. Cabranes

United States District Court

District of Connecticut

Chief Judge William C. O'Kelley
United States District Court
Northern District of Georgia

Judge David D. Dowd, Jr.

United States District Court

Northern District of Ohio

Judge Robert E. Ginsberg

United States Bankruptcy Court

Northern District of Illinois

L. Ralph Mecham, Director

Administrative Office of the

United States Courts

Federal Judicial Center

Judge John C. Godbold, Director

Charles W. Nihan, Deputy Director

lune 1988

judge. The Seventh Circuit noted that the
judge's son had recently represented
another bank in a similar transaction and
had been hired to avoid the time and
expense of educating the bank's regular
counsel about the "unusual" type of
transaction involved, the son's firm had
not been hired at a greater rate than it
usually charged, and the son's engage-
ment did not create a likelihood of his
doing significant future work for the
client. The Seventh Circuit held that the
engagement of the judge's son on a single
matter "is not similar in quality or quan-
tity to the sort of disqualifying interests
listed in § 455(b), and therefore does not
call for disqualification under § 455(a)."
Tenth Circuit offers "Dial-a-RuHng"
service. Tape recordings of recent rulings
of the Tenth Circuit and a brief explana-
tion of the legal reasoning of the decisions
can be heard by telephone in Denver.
Two phone answering machines are used,
each with a seven-minute capacity, ac-
cording to Clerk of Court Robert
Hoecker. The judge who writes the ruling
prepares the telephone synopsis, which is
kept on the tape for seven days. Lawyers
and news reporters use the service in-
stead of trying to speak with an individ-
ual in the clerk's office. The service is
believed to be the only one of its kind in
the federal system.

District court authorizes plaintiff
newspaper to seek costs and fee from
defendant stale judge. A U.S. district
court in New York has held that a county
judge's action in closing pretrial proceed-
ings in a criminal case violated the
public's qualified right of access to the
courts and has permitted the plaintiff to
recover costs from the judge. Johnson
Newspaper Corp. v. Morton, No. CIV-85-
1168E (W.D.N.Y. Mar. 3, 1988). A county
judge in New York, concerned about the
possible prejudicial effect of pretrial pub-
licity, ordered pretrial proceedings in a
criminal case closed to the public and the
press. Plaintiff newspaper brought suit in
federal district court under 42 U.S.C. §
1983, claiming that the judge's action had
deprived the newspaper of its First and
Fourteenth Amendment rights. It sought
a declaration that the order violated its
right of access to the courts. It also sought
prospective relief directing the judge,
when considering future motions for clo-
sure of hearings, to refrain from ordering
closure unless such a step is necessary, is
the least restrictive available remedy, and

there exists no other reasonably availabl
venue in the state where a fair trial coul(
be conducted. The defendant judge i:
recognition of the holding in Pulliam i
Allen, 466 U.S. 522 (1984), did not dair
judicial immunity, but did raise Elevent
Amendment, mootness, and abstentio
arguments. The district court held that th
action for prospective relief was not pr<
eluded by the Eleventh Amendment, th
the issue was not moot because it wb
capable of evading repetition yet woul
likely evade review in the future, and th,
abstention was not appropriate.

The district court further found that tl
judge's order closing the hearing to tl
press had violated the public's qualifie
constitutional standards, relying in pa
on Press-Enterprise Co. v. Superior Court
Cal. ("Press-Enterprise 11"), 106 S. Ct. 27:
(1986), whose decision postdated tl
county judge's ruling that was at issue
The district court granted the plaintifl
motion for summary judgment declarii
the judge's action unconstitutional, b
did not issue a permanent injunction, sa
ing that to do so would be "intrusive ai
unworkable." The district court's ord
permits the plaintiff to apply for fees ai
costs under 42 U.S.C. § 1988 and to i
cover them from the defendant judge.
Three bills pending in the Senate,
1512, S. 1515, and S. 1482, address t
issue of judicial immunity in the wake
Pulliam V. Allen. A Senate Judicia
Committee subcommittee held a heari
on the bills recently (see The Third Brum
April 1988, at 7).

Ninth Circuit Historical Socie
launches new journal. The Ninth Judic
Circuit Historical Society has publish
the first issue of Western Legal Histo
The journal, to be issued twice year
will contain illustrated articles, annotat
reviews of historical documents, bo
reviews and notices, and other inforn
tion relating to all aspects of the history
law in the American West. The Soci(
has more than 1,500 members, includi
individuals, universities, law schools, 1;
firms, and libraries. The Society occasic
ally publishes books, produces exhibi
collects oral histories, and in other wc
preserves the West's legal history. In IS
it gathered the oral histories of a numl
of eminent lawyers and judges, and v
publish in book form an edited collecti
of excerpts from some of the interviev
It is also working on a guide to Icj
See NOTEWORTHY, pag(

BULLETIN OF THE rh,
FEDERAL COURTS 4^

Court Technology Conference Co-sponsored by AO,
F]C, and Other Organizations Held in Denver

The Second National Conference
on Court Technology, co-sponsored
by the National Center for State
Courts and its Institute for Court
Management, the F]C, the AO, and
more than 20 other organizations,
was held in Denver, Colorado, Apr.
25-27. Almost 1,500 persons attended
the conference, including nearly 100
persons from the federal courts. Over
55 different sessions were conducted
during the conference on topics rang-
ing from desktop publishing to litiga-
tion support, video arraignments,
optical disk storage of court records,
and court security. Among the topics
that received the most attention were
alternative records storage strategies,
public access to court information,
and successful approaches to design-
ing, funding, and acquiring auto-
mated court management systems at
the local level.

Of particular interest was a session
entitled "Ten Technology Solutions
for Judges," which was conducted by
Judges David L. Phares (Maricopa
Cty., Ariz.) and R. Ryan Reinhold
(Navaho Cty., Ariz.). In this session
attendees learned about opportunities
for judges to use automation in cham-
bers to improve the quality of their

work product and to manage their
workload better. During the second
half of the session attendees were
paired to work directly on personal
computers using software that the
presenters had identified as being
very useful to judges. At the end of
the session the attendees were given
copies of all of the software used
during the session to take home with
them and use in their courts.

John Greacen, Clerk of the U.S.
Court of Appeals for the Fourth Cir-
cuit, made a presentation at two ses-
sions entitled Federal Automated Case
Management Software: Is There Any-
thing Here for State and Local Courts?
He reviewed the development and
the far-reaching capabilities of the
electronic docketing system used in
many federal courts and planned for
national expansion in the next few
years. The federal software and docu-
mentation is in the public domain, he
noted, and available at a nominal cost
to state and local courts that might
want to implement it. Although no
federal support could be provided to
any recipient court, Mr. Greacen rec-
ommended strongly that courts con-
sidering the development and im-
See TECHNOLOGY, page 8

Applications for 1989-1990 Judicial Fellows Program Invited

The Judicial Fellows Commission invites applications for the 1989-90 Judicial
Fellows Program. The program seeks to attract and select outstanding individuals
from a variety of disciplinary backgrounds who have an interest in judicial ad-
ministration and who show promise of making a contribution to the judiciary.

Two fellows will be chosen to spend a year, beginning in September 1989, at the
Supreme Court of the United States or the Federal Judicial Center. Candidates
should be familiar with the federal judicial system, have at least one postgraduate
degree, and two or more years of successful professional experience. Fellowship
stipends are based on salaries for comparable government work and on salary
histories of the fellows but will not exceed the GS 15, step 3 level (presently
$58,567).

The Judicial Fellows program was established in 1972 and is patterned after the
White House and Congressional Fellowships.

Information about the program and on application procedures is available from
Noel J. Augustyn, Executive Director, or Vanessa Yarnall, Associate Director,
Judicial Fellows Program, Supreme Court of the United States, Washington, D.C.
20543. (202) 479-3374. Applications should be submitted by Nov. 15, 1988.

Administrative Office
Releases Data on
Courts' 1987 Workload

The Administrative Office has
released Federal Judicial Workload Sta-
tistics December 1987, a report contain-
ing a statistical summary of the busi-
ness of the courts for the twelve-
month period ending Dec. 31, 1987.

During 1987, filings and termina-
tions reached record high levels in the
12 regional courts of appeals. Total
annual filings rose 3 percent, to
35,700 appeals, up from 34,753 ap-
peals in 1986. Most of the increase
occurred in federal and state prisoner
petitions, which combined increased
by more than 1,100 cases. The num-
ber of dispositions increased by 4
percent, from 33,936 appeals in 1986
to 35,276 in 1987. This growth in dis-
positions reflects increases both in
terminations on the merits after sub-
mission on briefs (up 11 percent) and
in procedural terminations by staff
(up 7 percent). For the past two years,
merit dispositions after submission
on briefs have grown steadily and
each year comprised a larger portion
of the overall termination workload
in the regional courts of appeals. Due
to the large number of terminations,
the overall pending caseload grew
less than 2 percent, to 26,894 appeals.
The increase for cases pending in
1987 represents the lowest numerical
and percentage growth in the re-
gional courts since 1982.

During 1987, a total of 233,292 civil
cases were filed in the district courts,
a 4 percent decrease from the 1986
filings. The largest decrease in civil
filings occurred in VA cases, which
dropped from 24,516 to 17,122. Fil-
ings in Social Security disability in-
surance cases increased from 8,542 to
11,275 and prisoner civil rights peti-
tions from 22,553 to 24,082. Social
Security supplemental security in-
come case filings rose from 2,155 to
2,935 and ERISA filings from 5,777 to
6,468. ■

June 1988

theTHIRDbranch

LEGISLATION, from page 2

the Judicial Conference of the United
States. Judge Breyer is the Judicial
Conference's representative to the
Administrative Conference of the
United States. Judge Arnold is a
member of the Committee on Fed-
eral-State Jurisdiction of the Judicial
Conference. The Judicial Conference
opposes judicial branch review of
veterans' claims for benefits as con-
tained in S. 11. If Congress deems
review of veterans' claims to be abso-
lutely necessary, the judges sug-
gested, such review should remain
with the Board of Veterans Appeals
or be conferred upon a new Article I
executive branch court. "Judicial re-
view should be limited to the review
of constihitional issues and statutory
interpretations, as is contemplated in
S. 2292. Appellate-type review could
be had either in the district court on
the limited basis of reviewing the
record, as is done in Social Security
cases, or in the court of appeals, as
contained in S. 2292. The Judicial
Conference will oppose any provi-
sions requiring judicial review of any
factual determination of the Veterans
Administration," Judge Arnold testi-
fied.

• An amended version of S. 1934, a
bill authorizing the construction of a
building for federal judicial agencies
and retired Supreme Court justices,
was reported by the Senate Commit-
tee on Environment and Public
Works. The amended version, intro-
duced by Sen. Daniel Patrick
Moynihan (D-N.Y.) would limit the
height of the building to 80 feet,
rather than the 94 feet previously
proposed. The amended version
would also specify that space not
used as judiciary offices must be
rented to other government agencies
rather than to private tenants.

• Rep. Joseph J. DioGuardi (R-N.Y.)
introduced H.R. 4406, a bill to amend
18 U.S.C. to provide for mandatory
random drug testing of federal proba-
tioners.

• Rep. Jim Olin (D-Va.) introduced

June 1988

The ource

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 mailing
label, preferably franked (but do not send an
envelope), and addressed to Federal Judicial
Center, 1520 H St., N.W., Washington, DC
20005.

Aspen, Marvin E. "Some Thoughts on
the Historical Origins of the United States
Constitution and the Establishment
Clause." 21 John Marshall L. Rev. 239
(1988).

"Constitutional Scholarship: What
Next?" (Symposium, including Richard
A. Posner). 5 Constitutional Commentary
17 (1988).

Dumbauld, Edward. "Algernon Sydney
on Public Right." 10 University of Arkansas
at Little Rock L.J. 317 (1987-88).

Galligan, Thomas C, Jr. "ArHcle III and
the 'Related to' Bankruptcy Jurisdiction:
A Case Study in Protective Jurisdiction."
11 University of Puget Sound L. Rev. 1
(1987).

Goldberg, Arthur J. "Death and the
Supreme Court." 15 Hastings Constitu-
tional L.Q. 1 (1987).

Goldstein, Steven M. "Application of
Res Judicata Principles to Successive Fed-
eral Habeas Corpus Petitions in Capital
Cases: The Search for an Equitable Ap-
proach." 21 U.C. Davis L. Rev. 45 (1987).
Logan, David A. "Judicial Federalism
in the Court of History." 66 Oregon L. Rev.
454 (1988).

Lubet, Steven. "Regulation of Judges'
Business and Financial Activities." 37

Emory L.J. 1 (1988).

Maatman, Gerald L., Jr,. and Gigi Ann
Gilbert. "Summary Jury Trial: The Long
& Short of It." CBA Record, April 1988, at
18.

MacCoun, Robert J. Getting Inside the
Black Box: Toward a Better Understanding of
Civil Jury Behavior. Rand Corp., 1987.

McFeeley, Neil D. "En Banc Proceed-
ings in the United States Courts of Ap-
peals." 24 Idaho L. Rev. 255 (1987-88).

Re, Edward D. "The Presumption of
Judicial Review in International Trade
Disputes." 10 Boston College International
and Comparative L. Rev. 173 (1987).

Redlich, Norman. "In Memoriam:
Judge Edward Weinfeld." 62 New York
University L. Rev. 927 (1987).

Ross, William G. "The Questioning of
Supreme Court Nominees at Senate Con-
firmation Hearings: Proposals for Accom-
modating the Needs of the Senate and
Ameliorating the Fears of the Nominees."
62 Tulane L. Rev. 109 (1987).

Sanctions: Rule 11 and Other Powers,
Second Edition. ABA Section of Litigation,
1988.

Schwarzer, William W. "Rule 11 Revis-
ited." 101 Harvard L. Rev. 1013 (1988).

Smith, Christopher E. "Who Are the
U.S. Magistrates?" 71 Judicature 143
(1987).

Strauss, Peter L. "One Hundred Fifty
Cases per Year: Some Implications of the
Supreme Court's Limited Resources for
Judicial Review of Agency Action." 87
Columbia L. Rev. 1093 (1987).

Wald, Patricia M. "Life on the District
of Columbia Circuit: Literally and Figura-
tively Halfway Between the Capitol and
the White House." 72 Minnesota L. Rev. 1
(1987).

Western Legal History. Winter/Spring
1988. Ninth Judicial Circuit Historical

H.R. 4464, a bill to amend the Federal
Rules of Civil Procedure with respect
to sanctions for the violation of rule
11. The bill would amend the last
sentence of rule 11 to read: "For a
wilful violation of this rule, an attor-
ney may be subjected to appropriate
disciplinary action." The amendment
would restore language that was in
the rule prior to its 1983 amendment.
The bill "will allow judges to impose
sanctions at their discretion but no
longer requires them to impose sanc-

tions," Rep. Olin said. In his view, the
current rule 11 "has not had the de-
sired effect" of limiting the number of
frivolous lawsuits, but has "added to
the problem, adding new cases to the
judges' dockets" in the form of litiga-
tion over rule 11.

• The House Foreign Affairs Sub-
committee on Human Rights ap-
proved H.R. 1417, a bill that would
permit torture victims who live in the
United States to bring civil suitJ
against their torturers. '

Bankruptcy court clerkc George B. Cauthen (D.S.C.) and Beth A. Dick (N.D. Ohio)
discuss the development of a long-range training plan for bankruptcy court personnel at
a recent meeting of the Bankruptcy Education and Training Committee.

NOTEWORTHY, from page 4

history resources to aid researchers. The
Board of the Society is chaired by Chief
Judge James R. Browning (9th Cir.). For
further information, contact Chet Orloff,
Director, Ninth Judicial Circuit Historical
Society, P.O. Box 2558, Pasadena, CA
91102-2558 tel. (818) 405-7059).

Presentence report released to third
party where presumption of confidenti-
ality overcome. A defendant's privacy
interest in presentence report does not
survive his death, and third-party peti-
tioners overcame the presumption of
confidentiality and were entitled to the
release of such a report, the Ninth Circuit
recently held. U.S. v. Schlette, No. 87-1106
:9th Cir. Mar. 31, 1988). Schlette, while on
probation, killed the state district attorney
who had successfully prosecuted him
many years before, then committed sui-
:ide. The estate of the murder victim and
i newspaper applied to the district court
:or release of Schlette's presentence inves-
dgation report. The government opposed
disclosure on the grounds of confidential-
ly. The district court denied disclosure
inder both FOIA and Fed. R. Crim. P.
J2(c). The estate and the newspaper
sought a writ of mandamus ordering the
iistrict court to release the report.

The Ninth Circuit noted the strong
^resumption in favor of confidentiality
md also noted that no reported cases had
ound disclosure of such a report to a
hird party necessary to serve the ends of
ustice. The court discussed a Federal Ju-
iicial Center study of rule 32(c) that led to
I 1983 amendment of the rule to further

increase disclosure of reports to defen-
dants. The court noted that while privacy
concerns may militate against disclosure
in a given case, when the defendant is
dead this ground for nondisclosure is
foreclosed, as privacy interests do not
survive death. The newspaper argued
that both the First Amendment and the
public interest supported disclosure.
Without reaching the First Amendment
argument, the court held that the com-
mon-law right of access to judicial rec-
ords was sufficient to warrant disclosure
here, where no legitimate reason for pre-
serving secrecy had been articulated by
the district court or by the government.

The estate argued that it required access
to the presentence report and related
documents so that it could determine
whether it had a cause of action for neg-
ligence based upon the probation
service's failure to warn the former prose-
cutor of the threat posed to him by
Schlette. "We express no opinion on
whether the estate may state a claim
based upon this theory," the court wrote,
but since "the requested documents are
relevant to a contemplated claim and . . .
the information ... in them cannot be ob-
tained elsewhere," the estate had made a
sufficient showing of need for disclosure
of the presentence report, and the psychi-
atric and postsentence probation reports.
The Ninth Circuit remanded the case to
the district court to redact information
from the documents, "consistent with
this opinion, which the district court de-
termines is the kind of information . . .
which should remain confidential." ■

BULLETIN OF THE
FEDERAL COURTS

Personnel

CIRCUIT JUDGES
Nomination

Pamela A. Rymer, 9th Cir., Apr. 26

Confirmations

Emmett R. Cox, 11th Cir., Apr. 15
David M. Ebel, 10th Cir., Apr. 19

Elevation

Albert J. Engel, Chief Judge, 6th Cir.,
Apr. 1

Nomination Withdrawn

David C. Treen, 5th Cir., May 10

DISTRICT JUDGES
Nominations

Norwood C. Tilley, Jr., M.D.N.C, Apr. 26
Charles R. Butler, Jr., S.D. Ala., Apr. 28
Fern M. Smith, N.D. Cal., May 9
Jan E. DuBois, E.D. Pa., May 10

Confirmations

Jack T. Camp, Jr., N.D. Ca., Apr. 19
Bernard A. Friedman, E.D. Mich., Apr. 19
Emilio M. Garza, W.D. Tex., Apr. 19
Lowell A. Reed, E.D. Pa., Apr. 19
Kimba M. Wood, S.D.N.Y., Apr. 19
Thomas S. Zilly, W.D. Wash., Apr. 19

Appointment

Stephen M. Reasoner, E.D. Ark., Apr. 9

Deaths

Burnita Shelton Matthews, D.D.C., Apr.

25
Robert Van Pelt, D. Neb., Apr. 27
Caleb R. Layton, D. Del., May 6
Richard J. Daronco, S.D.N.Y., May 21

BANKRUPTCY JUDGES
Appointments

Leslie J. Tchaikovsky, N.D. Cal., Apr. 14
Lynne Riddle, CD. Cal., Apr. 15
Vincent P. Zurzolo, CD. Cal., Apr. 18
Louis M. Phillips, D. La., May 2

Elevation

Ray Reynolds Graves, Chief Judge, E.D.
Mich., Apr. 14

MAGISTRATES (FULL-TIME)
Appointments

William G. Hussmann, Jr., S.D. Ind.,

Apr. 4
Kenneth R. Fisher, W.D.N.Y., Apr. 20
Paul Taylor, W.D.N.C, Apr. 29

June 1988

theTHIRDbranch

SUMMARY JURY, from page 3

summary jury trial is far less intru-
sive . . . than the local rules upheld by
the above authorities. No presump-
tion of correctness attaches to the
verdict of the summary jury, nor is
any sanction imposed for failure to
accept its advisory verdict. It is
merely a useful settlement device."
Thus, as a summary jury trial "is
essentially nonbinding arbitration
with an advisory jury instead of arbi-
trators," local rule 23 must be held
valid.

The court distinguished the case
before it from Strandell on the
grounds of the existence of the local
rule expressly providing for the use
of summary jury trials; no such local
rule existed in Strandell. The district
court in Strandell had held the use of

the summary jury trial procedure to
be authorized by Fed. R. Civ. P. 16,
the court's inherent authority, and a
resolution of the Judicial Conference
of the United States endorsing the
experimental use of the procedure.
Strandell v. Jackson County, 115 F.R.D.
333 (S.D. 111. 1987). The Williams court
"respectfully disagreed" with the
Seventh Circuit's opinion in Strandell,
finding that the district court opinion
in Strandell expresses "the better
view" on the court's authority to
order summary jury trial. Williams
expressed support for the view that
even where there is no local rule
expressly providing for the use of
summary jury trials, requiring the
procedure would be properly within
the court's discretion, for the reasons
given by the district court in Strandell.

TECHNOLOGY, from page 5

plementation of records-replacement
electronic docketing systems examine
the federal software before proceed-
ing with their own development.
Demonstrations of the appellate
(New AIMS) and district court
(CIVIL) versions of the software were
provided to interested attendees us-
ing the computer and courtroom fa-
cilities at the federal courthouse in
Denver. Almost 100 persons attended
the demonstrations of the federal
case management systems.

Over 30 vendors were represented
at the conference, who demonstrated
the latest technology for the courts,
ranging from case management and
other computer software systems to
electronic scanners and video confer-
encing systems. •

dA BULLETIN OF THE FEDERAL COURTS

THETHIRi^BRANCH

Vol.20 No. 6 June 1988

The Federal Judicial Center

1520 H Street, N.W.
Washington, DC 20005

Official Business

First
Class
Mail

Postage and

fees paid

United States

Courts

U.S. GOVERNMENT PRINTING OFHCE 1988-201-733-80004
June 1988

U . > / 2
7 /rriv BULLETIN OF THE FEDERAL COURTS

Goniooa

rHETHIRDBRANCH

VOLUME 20
NUMBER 7
JULY 1988

'ourts of Appeals Adopting Rules and
rocedures tor Sentencing Appeals

A number of the courts of appeals
ive adopted special rules or speci-
al in their internal op)erating proce-
jres or in "notices to counsel" the
ocedures to be followed in appeal-
g sentences under the guideline
ntencing system. Other appeals
lurts are presently handling such
)peals under their existing proce-
ires, with the option of implement-
g special rules or procedures at a
ter time.

Docketing statements and trans-
ittal sheets. Some appeals courts
ive adopted new criminal appellate
xketing statements, which are to be
ed in the clerk's office of the ap-
pals court at the same time as or
ortly after the notice of appeal is
ed in the district court. These state-
ents assist the appeals courts in
entifying cases under the guidelines
id the issues raised on appeal. For
ample, the docketing statement
lopted by the Eleventh Circuit re-
lires counsel to indicate whether the
)peal challenges the conviction, the
ntence, or both. Where the appeal
lallenges the sentence, or the convic-
)n and sentence, counsel in the
eventh Circuit indicate whether the
)pellant claims errors in the district

FJC Announces Seminar
for District Judges

Judge John C. Godbold, FJC Di-
rector, has announced that a seminar
for newly appointed district judges
will be held in Washington, D.C.,
starting Nov. 28 and concluding Dec.
2, 1988. All sessions will be at Dolley
Madison House, the Center's head-
quarters.

A reception for the new judges
and their families is scheduled for
Sunday, Nov. 27, and a dinner will
be held at the Supreme Court on
Nov. 30.

court's findings of fact or in its appli-
cation of the guidelines. Counsel
must show on the docketing state-
ment which guidelines the district
court applied and which guidelines
the appellant contends the court
should have applied. These designa-
tions by counsel generally track the
language of 18 U.S.C. § 3742(d),
which specifies the standard for re-
viewing guideline sentences. (A pro-
posed amendment to this and other
sections of the sentencing statute is
contained in S. 2485, a bill recently
passed by the Senate. See story on
legislarion, p. 5). Some courts' docket-
ing statements already required the
parties to set forth the issues that will
be raised on appeal; these statements
have not been modified. The Fourth
Circuit, for example, did not amend
its docketing statement, but in order
to help the appeals court identify pre-
and post-guidelines cases, it amended
the transmittal sheet that is com-
pleted by the district court staff when
the notice of appeal is transmitted to
the court of appeals.

Expedited appeals. Some appeals
courts have adopted rules or proce-
dures permitting counsel to move for
an expedited appeal where there is a
risk that a short sentence would al-
ready have been served before the
ordinary appeals process had run its
course. For example, the Eleventh
Circuit's "Notice Concerning Appeals
from Criminal Convictions" informs
counsel that appeals from sentences
or from convictions and sentences
pursuant to 18 U.S.C. § 3742 "will
generally proceed in the same man-
ner as other appeals and will not
automatically be expedited or given
preference." However, when the ap-
peal is only from the sentence im-
posed, "the court will consider impo-

See APPELLATE RULES, page 2

Sup, Court to Consider
Constitutionality of
Guidelines Next Term

On June 13 the Supreme Court
granted the Solicitor General's and
the defendant's petitions for writs of
cerriorari before judgment in a case
raising the issue of the constitutional-
ity of the Sentencing Guidelines. U.S.
V. Mistretta, No. 87-1904, Mistretta v.
U.S., No. 87-7028. The defendant in
the case pled guilty but challenged
the consHtutionality of the guidelines
on delegation and separation of pow-
ers grounds. The district court upheld
the constitutionality of the guidelines.
U.S. V. Mistretta, 682 F. Supp. 1033
(W.D. Mo. 1988).

The Solicitor General's petition
noted the split among the district
courts that have decided the issue.
Until the Supreme Court resolves the
constitutionality issue, the peritton
said. Congress's intent to avoid un-
warranted sentencing disparity "will
be frustrated as individual district
judges independently decide whether
to sentence defendants under the pre-
or post-Act sentencing system."

The petitions for certiorari identify
the questions presented by the case as
whether the Sentencing Guidelines
are invalid because the Sentencing
Commission is constituted in viola-
tion of separation of powers prin-
ciples; whether they are invalid be-
cause the Sentencing Reform Act of
1984 improperly delegates legislative
authority to the Sentencing Commis-
sion; and whether, if they are invalid,
the 1984 amendments to the statutes
See GUIDELINES, page 8

Inside . . .

Judges Surveyed on Salaries,
Other Issues p. 3

Effect of Guidelines on Pretrial
Services Weighed p. 3

theTHIRDbranch

APPELLATE RULES, from page 1

sition by the lower court of a 'short'
sentence of incarceration or probation
(under six months in duration) as a
basis for expedited consideration
provided that appellant otherwise
demonstrates that he will be injured if
the appeal is not expedited." The ap-
pellant should seek expedited consid-
eration by motion after filing the no-
tice of appeal, but "[p]arties are cau-
tioned that the court disfavors bifur-
cation of issues concerning sentencing
from those concerning conviction and
generally will consider all issues on
appeal together."

Similarly, in the Sixth Circuit the bi-
furcation of verdict and sentence
appeals will be discouraged. Where
separate appeals are filed from the
conviction and sentence, they will be
consolidated and processed as a
single unit, with the exception of
appeals that challenge sentences of in-
carceration of less than one year.
Such cases will be closely proctored
in the clerk's office to ensure an accel-
erated disposition.

In the D.C. Circuit, expedited treat-
ment will be given to appeals from
sentences for a term of eight months
or less where the defendant is in
custody pursuant to the sentence
appealed; such expedited appeals
from the sentence imposed will be
heard separately from the appeal of
the underlying merits in the D.C.
Circuit.

BULLETIN OF THE FEDERAL COURTS

theTHIRDbranch

Published monthly by the Administrative
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. ODonnell, Director, Division of
Inter-Judicial Affairs and Information
Services, Federal Judicial Center. Peter G.
McCabc, Assistant Director, Program
Management, Administrative Office of the
U.S. Courts.

The Fifth Circuit's rule governing
appeals raising Sentencing Guidelines
issues provides that if the appeal is
from the sentence only, the docketing
statement will serve as the brief on
appeal unless the appellant elects
otherwise.

The rule adopted in the Tenth Cir-
cuit provides that where the sentence
is less than one year and neither pro-
bation nor release pending appeal is
granted, the appellant may move for
an expedited appeal. The Tenth
Circuit's docketing statement is de-
signed to permit this motion to be
made on the docketing statement it-
self by affirmatively responding to
one of the questions on the statement.
Preparation of the transcript of the
sentencing hearing. 18 U.S.C.
§ 3553(c) requires the court at the
time of sentencing to state the reasons
for its imposition of the particular
sentence and to state its reasons for
departing from the guidelines if this
is done. The relevant district court
proceedings, such as the sentencing
hearing, must be transcribed and
made part of the record on appeal.
Under the regular procedures in the
Third Circuit, transcripts in criminal
appeals are required to be filed
within 30 days of the completion of
the transcript purchase order. Adher-
ing to this 30-day time period would
delay an expedited case, so the Third
Circuit's Judicial Council entered an
order authorizing the clerk of the
court of appeals to enter any order
appropriate to ensure expedited
transcription. Under the Judicial
Council's order, the clerk of the court
of appeals can order court reporters
to give priority to the transcript of the
sentencing proceeding. This order
would require the completion of the
pertinent transcripts within 14 days,
the filing of appellant's brief within
14 days of the filing of transcripts, the
filing of appellee's brief within 14
days of appellant's brief, the filing of
any reply brief within 14 days of
appellant's brief, and the filing of any
reply brief 10 days thereafter. Simi-

larly, the Sixth Circuit's internal ope
ating procedures now provide thav
the court of appeals may direct the
preparation of a transcript "out of the
order otherwise prescribed by rule."
Presentence report. Under the pre-
guideline system, the presentence
report was not included in the record
on appeal unless the presentence re-
port was at issue. Section 3742(c)(2) of
18 U.S.C. now requires it to be in-
cluded in the record whenever a
criminal appeal includes a challenge
to the guidelines sentence. Some loca!
rules of the district courts do noi
specify whether copying of the pre
sentence report is permitted, anc
some local rules prohibit the copying
of the presentence report. In som(
circuits, the presentence report mus
be transmitted under seal from th(
district court to the court of appeals
For example, internal operating pro
cedures adopted in the Sixth Circui
provide that both the presentenc
report and any objections to it sh^'
be placed under seal by the distric
court and forwarded to the court c
appeals, "which shall maintain th
seal." Review of these documents b
the court of appeals is conducted ii
an in camera manner "to ensure th
confidentiality of the report, and n
copying or viewing by counsel sha
be had except by order of the court.
The Fifth Circuit's "Rule Govemin
Appeals Raising Sentencing Guide
lines Issues" provides that the preser
tence report transmitted to the coui
of appeals "shall be transmitted sepc
rately from other parts of the recor
on appeal and shall be labeled as
sealed record if sealed by the distrii
court." Presentence reports filed i
the Fifth Circuit as part of a record o
appeal "will be treated as matters (
public record except to the extent th;
the report . . . has been sealed b
order of the district court." Counsi
may file a motion for access to seale
presentence reports in the Fifth Ci
cuit; if the motion is granted, coun^
may not duplicate the report, an
must return it to the court.

July 1988

BULLETIN OF THE rH
FEDERAL COURTS «»P

ictive Article III Judges
surveyed on Salaries,
Other Issues by
'udicial Conference
Committee

The Judicial Conference Committee
)n the Judicial Branch, chaired by
udge Frank M. Coffin (1st Cir.), has
lurveyed federal judges concerning
heir length of service, their attitudes
oward their office, their compensa-
ion, and the considerations entering
nto their choice to accept a judge-
hip. The anonymous responses to the
urvey questionnaire will be tabu-
ated and the results presented to the
988 Commission on Executive, Leg-
slative, and Judicial Salaries.

The survey, which was sent to all
10 active Article III judges, was con-
lucted with the assistance of the Of-
ice of the General Counsel of the Ad-
runistrative Office of the U.S. Courts,
dore than 600 responses had been re-
eived by mid-June. ■

Updated FJC Study of

Issues in Job Bias

Cases Released

The FJC has published Major Is-
sues in the Federal Law of Employ-
ment Discrimination (2d ed.) by Pro-
fessor George Rutherglen of the
University of Virginia School of
Law. An update of Professor
Rutherglen's previous monograph
for the Center, the book is in three
sections. The first two sections sur-
vey the substantive and procedural
provisions of title VII of the Civil
Rights Act of 1964; the third dis-
cusses other federal remedies for
employment discrimination. The
book also includes an annotated
bibliography of books, articles, and
student comments and notes on the
subject.

Copies of the monograph may be
obtained from Information Serv-
ices, 1520 H St., N.W., Washington,
DC 20005. Please enclose a self-
addressed mailing label, preferably
franked (8 oz.). Do not send an en-
velope.

Judge Joseph Hatchett (11th Cir.), chairman of the Judicial Conference's Magistrates Commit-
tee, and three U.S. magistrates met recently with the Chief Justice to discuss items of mutual
interest concerning the operation of the federal magistrate system. From left, John Thomas
Jones, Chief, Division of Magistrates, AO; Harvey E. Schlesinger, U.S. Magistrate, M.D. Fla.
yacksonville); John Paul Godich, U.S. Magistrate, S.D. Ind. (Indianapolis); Judge Hatchett; Da
Jeanne Sensenich, U.S. Magistrate, W.D. Pa. (Pittsburgh).

Guidelines' Effect on Pretrial Services Under
Consideration by JCUS Subcommittee

Pursuant to a recommendation of
the Subcommittee on Pretrial Services
of the Judicial Conference's Criminal
Law and Probation Committee, the
pretrial services "advice of rights"
form was provisionally amended ear-
lier this year in light of the Sentencing
Guidelines. The Subcommittee has
considered the overall impact of the
guidelines on the implementation of
the Pretrial Services Act of 1982, and
will make further recommendations
in the near future.

The "advice of rights" form signed
by defendants at the time of pretrial
services interviews was amended
because of the possibility that infor-
mation disclosed by a defendant dur-
ing such an interview may later be
used in the computation of the
defendant's sentence under the sen-
tencing guidelines system. The
amended form now includes the lan-
guage, "In the event I am found
guilty, the informahon I provide will
be made available to a U.S. Probation
Officer for the purpose of preparing a
presentence report and may affect my
sentence."

Information provided during pre-
trial services interviews is used by the
court to determine whether and un-
der what conditions a defendant will
be released or detained pending trial.
Such informahon is not used against
defendants on the issue of guilt in any
judicial proceeding (except prosecu-
tions for perjury or false statements
made in the course of obtaining re-
lease and prosecutions for failure to
appear at the criminal proceeding for
which pretrial release was granted).

Under the Sentencing Guidelines,
information disclosed during a pre-
trial services interview pertaining to
the defendant's drug use, prior crimi-
nal history, and financial data could
become part of a guideline computa-
tion. For certain offenses, such as
property crimes, tax crimes, fraud,
and drug crimes, the guidelines that
apply are determined with reference
to the quantity of money or drugs
involved in the case. Behavior that
was not included in the offense of
conviction or even in the charging
See PRETRIAL, page 8

July 1988

theTHIRDbranch

The Source

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 mailing
label, preferably franked (but do not send an
envelope), and addressed to Federal Judicial
Center, 1520 H St., N.W., Washington, DC
20005.

A Survey of State Judicial Fringe Bene-
fits. ABA, Judicial Administration Di-
vision (1988).

Crump, Susan. "Jury Misconduct,
Jury Interviews, and the Federal Rules
of Evidence: Is the Broad Exclusionary
Principle of Rule 606(b) Justified?" 66
North Carolina L. Rev. 239 (1988).

Dunn, Mark T. "Chapter 12 of the
U.S. Bankruptcy Code: Recent Issues
and Cases." 76 Illinois Bar J. 376
(1988).

Easterbrook, Frank H. "The Role of
Original Intent in Statutory Construc-
tion." 11 Harvard J. of Law & Public
Policy 59 (1988).

Edwards, Harry T. "The Future of
Affirmative Action in Employment."
44 Washington & Lee L. Rev. 763
(1987).

"Essays on the Supreme Court Ap-
pointment Process." 101 Harvard L.
Rev. 1146 (1988).

Furlow, David A., and Charles W.
Kelly. "Removal and Remand: When
Does a Federal District Court Lose Ju-
risdiction Over a Case Remanded to
State Court?" 41 Southwestern L.J. 999
(1987).

Garner, Joel H. "Delay Reduction in

Personnel

QRCUIT JUDGES
Nominations

Richard L. Nygaard, 3d Cir., May 25

Appointments

Paul R. Michel, Fed. Cir., Mar. 8
Wade Brorby, 10th Cir., Mar. 31
Stephen Trott, 9th Cir., Apr. 19

Elevations

Alfred T. Goodwin, Chief Judge, 9th Cir.,
June 15

Death

Oscar H. Davis, Fed. Cir., June 19

DISTRICT JUDGES
Nominations

Herbert J. Hutton, E.D. Pa., May 17
Robert P. Patterson, Jr., S.D.N.Y., June 14
Robert C. Bonner, CD. Cal., June 15
Adriane J. Dudley, D. V.I., June 20
Lewis T. Babcock, D. Colo., June 23
Melinda Harmon, S.D. Tex., June 23

Confirmations

David A. Ezra, D. Haw., May 19
John C. Linand, D.N.J., May 19
William C. Cambridge, D. Neb., May 27
Richard A. Schell, E.D. Tex., May 27

July 1988

Appointments

Kenneth Conboy, S.D.N.Y., Feb. 3
Edward F. Harrington, D. Mass., Feb. 29
Rudy Lozano, N.D. Ind., Mar. 27
Paul Niemeyer, D. Md., Mar. 31
Kenneth M. Hoyt, S.D. Tex., Apr. 12
Thomas Zilly, W.D. Wash., Apr. 30
Lowell Reed, E.D. Pa., May 6
Jack T. Camp, N.D. Ga., May 27
Richard Arcara, W.D.N.Y., June 1
Bernard Friedman, E.D. Mich., June 1

Elevations

Harold L. Ryan, Chief Judge, D. Idaho,

May 2

David V. O'Brien, Chief Judge, D.V.I.,

May 15

Neal P. McCurn, Chief Judge, N.D.N.Y.,

June 30

Senior Status

G. Wix Unthank, E.D. Ky., June 14

Deaths

Jack Roberts, W.D. Tex., Feb. 27
Lloyd H. Burke, N.D. Cal., Mar. 15
Valdemar A. Cordova, D. Ariz., June 18

BANKRUPTCY JUDGES
Appointments

Mitchel R. Goldberg, CD. Cal., June 1
Randall J. Newsome, N.D. Cal., June 1
Marilyn Morgan, N.D. Cal., June 16

the Federal Courts: Rule 50(b) and tm.
Federal Speedy Trial Act of 1974." 3 /,
of Quantitative Criminology 229 (1987),

Ginsburg, Douglas H. "The Appro-
priate Role of the Antitrust Enforce-
ment Agencies." 9 Cardozo L. Rev
1277 (1988).

Grunin, Susan Krup, and Jud Wat
kins. "The Investigative Role of th(
Uruted States Probation Officer Un
der Sentencing Guidelines." 51 Federa
Probation 43 (Dec. 1987).

Jensen, Erik M. "Monroe G. McKa;
and American Indian Law: In Hono
of Judge McKay's Tenth Anniversar
on the Federal Bench." 1987 Brighar.
Young University L. Rev. 1103.

Komesar, Neil K. "A Job for th
Judges: The Judiciary and th
Constitution in a Massive and Corr
plex Society." 86 Michigan L. Rev. 65
(1988).

Kozinski, Alex, and J. D. William
"It Is a Constitution We Are E:
pounding: A Debate." 1987 Utah |
Rev. 977.

Marshall, Thurgood. "Th
Constitution: A Living Document
30 Howard L.J. 623 (1987).

Mosk, Stanley. "The Common La
and the Judicial Decision-Makir
Process." 11 Harvard J. of Law & Publ

Policy 35 (1988).
Motley, Constance Baker. "Massif

Resistance: America's Second Ci\

War." 41 Arkansas L. Rev. 123 (1988
Pamess, Jeffrey A. "More Stringe

Sanctions Under Federal Civil Ru

11: A Reply to Professor Nelken." '.

Georgetown L.J. 1937 (1987).
Practitioner's Handbook for Appeals

the United States Court of Appeals j

the Seventh Circuit (1988).
Sloviter, Dolores K. "Perceptions

the Legal Profession." 10 Western Ni

England L. Rev. 175 (1988).
Wasby, Stephen L. "Technolo;

and Communication in a Fedei

Court: The Ninth Circuit." 28 Sat

Clara L. Rev. 1 (1988).
Weaver, George M. "The Precede

tial Value of Unpublished Judic

Opinions." 39 Mercer L. Rev. 4

(1988).

BULLETIN OF THE i^
FEDERAL COURTS 4p

President Signs Supreme Court Docket Bill;
Congress Considers Government Pay Raise

Congress has taken action this
summer on legislation concerning the
Supreme Court's discretion over its
appellate docket, salary increases, a
new building for the judiciary in
Washington, and other matters of in-
terest to the judiciary.

• S. 952, a bill to abolish the Su-
preme Court's mandatory appellate
jurisdiction, was passed by the House
and Senate and signed by President
Reagan. Chief JusHce Rehnquist, in a
letter to Rep. Robert W. Kastenmeier
(D-Wis.) dated May 11, 1988, thanked
Rep. Kastenmeier for his role in expe-
diting the bill's passage. Rep. Kasten-
meier chairs the House Judiciary
Committee's Subcommittee on
Courts, Civil Liberties, and the Ad-
ministration of Justice. The Chief Jus-
tice in his letter characterized the ef-
fective elimination of the Supreme
Court's mandatory jurisdiction that
S. 952 would provide as "the pri-
mary legislative goal of the Court."

• As part of its general governmen-
tal appropriations bill, the House
voted a 4 percent pay raise for federal
government employees, but the raise
would not apply to high-level execu-
tives or judges. The Senate has ap-
proved a 4 percent raise that would
include the executives and judges. A
conference committee will now take
up the matter.

• S. 1934, to provide for a building
for agencies of the judiciary and re-
tired Supreme Court Justices in
Washington, D.C. (see The Third
Branch, June 1988, at 6), passed the
Senate. The bill authorizes the Archi-
tect of the Capitol and a commission
representing the Supreme Court,
House, and Senate to oversee a de-
sign competition for the building, to
select the successful bidder, and to
enter into an agreement to construct
the building. The bill as passed pro-
vides that the judiciary will initially
occupy about two-thirds of the build-
ing, with plans to occupy more space

as time passes. The remaining space
will be offered first to other federal
government tenants (other than con-
gressional committee staff or the per-
sonal staff of Senators and Represen-
tatives). Only if there are insufficient
government tenants will space be of-
fered to private tenants.

The 12-member commission re-
sponsible for supervising the design,
construction, maintenance, and secu-
rity of the building will include two
persons to be appointed by the Chief
Justice from among the Justices of the
Supreme Court and federal judges.
The commission will also include
members of the House Office Build-
ing Commission (or their designees);
the majority leader and minority
leader of the Senate (or their desig-
nees); the chairman and ranking mi-
nority member of the Senate Commit-
tee on Rules and Administration (or
their designees); the chairman and
ranking minority member of the Sen-
ate Committee on Environment and
Public Works (or their designees);
and the chairman and ranking minor-
ity member of the House Committee
on Public Works and Transportation
(or their designees).

• H.R. 3152, the omnibus or "house-
keeping" bill containing numerous
provisions called for by the Judicial
Conference of the United States (see
The Third Branch, June 1988, at 2) was
reintroduced as a new bill, H.R. 4807.

• S. 2485, the Minor and Technical
Criminal Law Amendments Act of
1988, was passed by the Senate. Title
I of the bill would make numerous
corrections to existing criminal stat-
utes. One section would create three
additional RICO predicates: murder-
for-hire; sexual exploitation of chil-
dren; and fraud in connection with
credit cards, electronic banking cards,
and similar "access devices." Other
sections of title I would permit Fed-
eral Prison Industries, Inc., to borrow
funds from the Treasury to finance

Calendar

June 30-July 2 Fourth Circuit Judicial

Conference
July 6-8 Tenth Circuit Judicial Conference
July 6-9 Sixth Circuit Judicial Conference
July 7-8 Judicial Conference Advisory

Committee on Bankruptcy Rules
July 11-15 Orientation Seminar for New

Probation & Pretrial Officers
July 14-17 Eighth Circuit Judicial Confer-
ence
July 17-20 Judicial Conference Committee

on Judicial Ethics
July 17-30 National Criminal Defense

College Trial Practice Institute, Sess. II
July 18-19 Judicial Conference Committee

on Rules of Practice and Procedure
July 18-19 Judicial Conference Committee

on Codes of Conduct
July 25-27 Workshop for Administrative

Managers
July 28-29 Judicial Conference Committee

on the Bicentennial of the Constitution
July 29-30 Judicial Conference Committee

on the Budget
Aug. 1-5 Orientation Seminar for New

Probation/Pretrial Officers

capital expansion; would increase the
penalty for possession of explosives
in a federal building; and would
amend Fed. R. Crim. P. 11(c) to re-
quire a federal district court, before
accepting a plea of guilty or nolo
contendere, to advise the defendant
of the possible imposition of a period
of supervised release after imprison-
ment (as authorized by 18 U.S.C.
§ 3583) effective as to crimes com-
mitted on or after Nov. 1, 1987. Rule
11 currently requires advice as to the
effect of any possible term of special
parole.

Title II of the bill, the Ancillary
Debt Collection Amendments Act of
1988, is intended to be a supplement
to the Debt Collection Act, which was
previously introduced as S. 1961 (see
The Third Branch, February 1988, at 4).

Title III of S. 2485 would amend 18
U.S.C. pertaining to sentencing proce-
dures under the Sentencing Guide-
lines. Section 311 of title III would
See LEGISLATION, page 6
July 1988

theTHIRDbranch

Noteworthy

Marshal properly removed from
office; office not "quasi-judicial."
The fact that the judiciary benefits
from the law enforcement activities of
U.S. marshals does not make their
office quasi-judicial and limit the
President's plenary pov^er to remove
them from office, the Third Circuit
has held. Chabal v. Reagan, 841 F.2d
1216 (3d Cir. 1988). A marshal was
removed from office by the President.
He brought suit against the United
States, President Reagan, the Depart-
ment of Justice, the U.S. Marshals
Service, and several other federal offi-
cials. He alleged that the President
had removed him in violation of the
First and Fifth Amendments and
sought declaratory relief, reinstate-
ment, back pay, and damages. After
remand from the court of appeals, the
district court transferred one of the
plaintiff's claims for money damages
to the U.S. Claims Court and dis-
missed the remaining claims for fail-
ure to state a claim on which relief
can be granted. Chabal v. Reagan, 633
F. Supp. 1061 (M.D. Pa. 1986). On
appeal, the Third Circuit affirmed,
observing that officers exercising
purely executive powers are remov-
able at will by the President. The
marshal claimed that because mar-
shals provide a variety of services for
the judiciary, some of them arguably
essential to the functioning of the
courts, the office of marshal is not
merely executive but quasi-judicial as
well, and that this limits the
President's removal power. The court
of appeals rejected this argument,
stating that it "confuses the question
of who benefits from the marshals'
law enforcement activities with the
question of whether those activities
involve executive power." 841 F.2d at
1221. The conclusion that Congress
has not attempted to restrict the
President's removal power is rein-
forced by Congress's express decision
to subject marshals to the supervision

July 1988

and direction of the Attorney Gen-
eral, the court noted.

D.C. Cir. upholds constitutionality
of Federal Salary Act. The 1967 act
that established the Commission on
Executive, Legislative, and Judicial
Salaries is constitutional, the D. C.
Court of Appeals has ruled.
Humphrey v. Baker, No. 87-5310 (D.C.
Cir. May 31, 1988). The law had been
challenged on separation of powers
and other grounds by several mem-
bers of Congress (see The Third
Branch, May 1987, at 6).

Bureau of Justice Statistics reports
comprehensive data on crime. The
Justice Department's Bureau of Jus-
tice Statistics has released a compre-
hensive report on crime. Report to the
Nation on Crime and Justice. According

to the report, in 1985 violence or theff^
touched about one fourth of all
American households. A violent
crime by strangers or a burglary
struck 8 percent of all households in
1985. The chance of being a victim of
a violent crime, with or without in-
jury, is greater than that of being hurt
in a traffic accident. More than 1.5
percent of the adult population in the
United States is under some form of
correctional sanction, but three out of
four adults under correctional care or
custody are not incarcerated. Over
the past several years, probation
populations have increased by more
than 18 percent, compared with about
15 percent in jail and prison popula-
tions and nearly 13 percent in the
number of parolees. ■

LEGISLATION, from page 5
clarify language in 18 U.S.C. that
imposed certain recordkeeping re-
quirements on trial courts. Under 18
U.S.C. § 3553(c), a court must state
"the reasons" for its imposition of a
particular sentence, and a transcript
of every statement of reasons must be
prepared and transmitted to the Pro-
bation Service and, where a term of
imprisonment is imposed, to the Bu-
reau of Prisons. An analysis of S. 2485
provided by Sen. Robert Byrd (D-
W.Va.) concluded that the present
statutory requirement that transcripts
be prepared in every case "places a
tremendous burden on court person-
nel, especially court reporters. The
requirement may impede the efficient
preparation and transmittal of tran-
scripts in those cases in which tran-
scripts would be valuable . . . ." Thus,
under § 311 of the bill, the sentencing
court would still be required to state
publicly the reasons for imposing a
particular sentence, and the statement
of reasons would still be transmitted
to the appropriate agencies. The
amendment would permit the court
to determine whether a transcript is
the most suitable form of transmittal
in a particular case, or if a different
form of transmittal is appropriate.

Section 312 of title III would clarify
18 U.S.C. § 3742, Appellate Review of
Sentences. One provision of § 312
would specify the standard to be
applied by the court of appeals iiv
reviewing the district court's determi-
nation of mixed questions of law and
fact.

Another provision of title III ad-
dresses a concern related to the time
limits for appeals set forth in Fed. R.
App. P. 4(b). Rule 4(b) provides that
in a criminal case a defendant has 10
days in which to file an appeal and
the government has 30 days. In both
cases the time period runs from the
entry of the judgment. A defendant
who received a light sentence could
allow the 10-day period to lapse with-
out filing an appeal, only to find that
the government later chose to file an
appeal within its 30-day limit. In such
a case a defendant would be fore-
closed from filing a cross-appeal. The
amendment proposed by § 320 would
permit either party to start counting
the period for filing an appeal on the
day an appeal is filed by the opposing
party.

• H.R. 2182 passed the House o?|

June 22 and is pending before the

Senate Judiciary Committee. One title

See LEGISLATION, page 7

BULLETIN OF THE rH
FEDERAL COURTS ^^dr

LEGISLATION, from page 6
Df the bill would revise the procedure
by which amendments to federal
rules are drafted and take effect, and
,s intended to increase participation
n the rulemaking process by all seg-
Tients of the bench and bar (see de-
ailed description in The Third Branch,
\ugust 1987, at 3).

• S. 2455, a bill that would authorize
he death penalty in drug-related kill-
ngs, was passed by the Senate June
10. S. 2455 is based on provisions of
wo previously introduced bills: S.
!206, Senator Alfonse M. D'Amato's

Positions Available

Clerk, E.D. Tenn., Knoxville. Salary
$54,907-571377. Requires minimum 10
years' progressively responsible admin-
istrative experience in public service or
business, at least 3 in position of substan-
tial management responsibility; thor-
ough understanding of court manage-
ment. Attorneys in active practice of law
in public or private sector may substitute
active practice on a year-for-year basis
for experience reqxiirement. Education
may be substituted for experience on
following basis: bachelor's degree for 3
years; postgraduate degree in public,
business, or judicial adnunistration for 1
additional year. Law degree may be con-
sidered as qualifying for 2 additional
years' experience. Law degree, legal
practice, and training or experience in
judicial administration highly desirable.
Send 4 copies of cover letter and resume
by Sept. 15 to Chief Judge Thomas G.
Hull, Room 221, U.S. Courthouse, 101
Summer St. W., Greeneville, TN 37743.

Chief Deputy Clerk, U.S. Bankruptcy
Court, N.D. Ga., Atlanta. Salary from
$27,716-S54,907, depending on experi-
ence. Serves as office manager; respon-
sible to clerk for administration and
supervision of office. Must be high
school graduate or equivalent and have
3 years' progressively responsible gen-
eral experience (administrative, profes-
sional, investigative, technical, or other)
and 3 years' progressively responsible
specialized experience in administrative,
supervisory, managerial, or professional
work. Open until filled. Submit resume
or typed SF171 to Qerk, U.S. Bankruptcy
Court, 1340 U.S. Courthouse, 75 Spring
Street, S.W. Atlanta, GA 30303, Atten-
tion: Linda Cooke, marked "Confiden-
tial."

EQUAL OPPORTUNITY
EMPLOYERS

bill to provide the death penalty for
the murder of a law enforcement offi-
cer and for "drug kingpins" who
order the killing of any individual;
and S. 2251, the Law Enforcement
Officers' Protection Act, introduced
by Sen. Pete Wilson (R-Cal.), to pro-
vide the death penalty for the killing
of any law enforcement officer or
corrections officer involved in drug
law enforcement (see The Third
Branch, June 1988, at 2). S. 2455 would
provide for the possible imposition of
the death penalty on the killers of
judges and prosecutors as well as law
enforcement and corrections officers.

• The House Judiciary Committee's
Subcommittee on Courts, Civil Liber-
ties, and the Administration of Justice
marked up H.R. 4021, the Federal
Prison Industries Reform Act of 1988
(see The Third Branch, April 1988, at
7). The bill would permit Federal
Prison Industries, Inc., to borrow
from the Treasury.

• The House Judiciary Committee's
Subcommittee on Civil and Constitu-
tional Rights, chaired by Rep. Don
Edwards (D-Cal.), held hearings in
the inquiry into the conduct of Judge
Walter L. Nixon, Jr. (S.D. Miss.). Rep.
Peter W. Rodino, Jr. (D-N.J.) had in-
troduced H. Res. 407, calling for the
impeachment of Judge Nixon, on
Mar. 17, 1988, following certification
by the Judicial Conference of the
United States that Judge Nixon had
engaged in conduct that might consti-
tute grounds for impeachment (see
The Third Branch, April 1988, at 1).
Judge Nixon was convicted of two
counts of perjury in the Southern
District of Mississippi.

• In the matter of the resolution
calling for the impeachment of Judge
Alcee L. Hastings, the House Judici-
ary Committee's Subcommittee on
Criminal Justice concluded its hear-
ings. Judge Hastings was found not
guilty in 1983 on charges of conspir-
ing to receive a bribe. After an inves-
tigation by the Investigating Commit-
tee of the Judicial Council of the Elev-
enth Circuit, the Circuit Judicial
Council certified to the Judicial Con-

ference of the United States that
Judge Hastings had "engaged in con-
duct which might constitute grounds
for impeachment." The Judicial Con-
ference in March 1987 certified to the
Speaker of the House that "considera-
tion of impeachment may be war-
ranted" (see The Third Branch, April
1987, at 5).

• H.R. 1212, a bill limiHng poly-
graph use by forbidding private
employers to use such tests in preem-
ployment testing of job applicants
and setting certain restrictions on the
testing of employees, was cleared for
signature by the President. H.R. 1212,
as passed, incorporated S. 1904 and
represents a compromise with the
Senate on some issues. The bill does
See LEGISLATION, page 8

THE BOARD OF THE
FEDERAL JUDICIAL CENTER

Chairman

The Chief Justice
of the United States

Judge Alvin B. Rubin

United States Court of Appeals

for the Fifth Circuit

Judge J. Clifford Wallace

United States Court of Appeals

for the Ninth Circuit

Judge Jose A. Cabranes

United States District Court

District of Connecticut

Chief Judge William C. O'Kelley
United States District Court
Northern District of Georgia

Judge David D. Dowd, Jr.

United States District Court
Northern District of Ohio

Judge Robert E. Ginsberg

United States Bankruptcy Court

Northern District of Illinois

L. Ralph Mecham, Director

Administrative Office of the

United States Courts

Federal Judicial Center

Judge John C. Godbold, Director

Charles W. Nihan, Deputy Director

]uly 1988

theTHIRDbranch

PRETRIAL, from page 3
document can be taken into account
in applying the guidelines. For ex-
ample, if a defendant is convicted of
a drug trafficking offense, all evi-
dence of drug sales or usage— such as
admissions made during a pretrial
services interview or to a probation
officer about how heavy the
defendant's drug use had been over a
certain period of time — could be fac-
tored in.

In addition, one of the factors de-
termining the applicable guideline
range is the defendant's conviction
record as a juvenile or adult. Prior
criminal history information volun-
teered by the defendant but not ap-
pearing in official records — such as
an admission of a conviction that the
probation officer would not other-
wise be aware of — could thus con-
ceivably affect the defendant's sen-
tence.

Similarly, Section 4B1.3 of the Sen-
tencing Guidelines, the "criminal
livelihood" provision, in essence pro-
hibits probation for an individual
convicted of an offense that was part
of a "pattern of criminal conduct

from which he derived a substantial
portion of his income." A defendant's
statements about his or her finances
made during the pretrial interview
could be used in assessing whether
this provision applies.

In light of the Sentencing Guide-
lines, some defense attorneys have
advised clients against answering
certain pretrial services questions,
while others have advised agair\st an-
swering any questions. ■

LEGISLATION, from page 7
not apply to governmental employers
or to employers offering security
services. In cases involving economic
loss, tests could be administered to
employees with access to lost prop-
erty and to those whom the employer
reasonably suspects of theft. The bill
establishes a civil penalty of up to
$10,000 for violations.

• Sen. Rudy Boschwitz (R-Minn.)
introduced S. 2428, to amend title VII
of the Civil Rights Act of 1964 to pro-
hibit employment discrimination in
the legislative or judicial branches of
government, which are not covered
by the act. The bill is a companion

measure to the previously introducec^
H.R. 4576 (see The Third Branch, June'
1988, at 2). ■

GUIDELINES, from page 1

governing parole and "good time"
credits are severable and thus should
apply to defendants sentenced for
crimes committed after Nov. 1, 1987.

The Solicitor General's petition also
noted that the longer the question of
the constitutionality of the guidelines
remains unsettled, the greater will be
the number of defendants who may
have to be resentenced. The Sentenc-
ing Commission has estimated that
the costs of resentencing to the fed-
eral courts, the U.S. Attorneys' of-
fices, counsel appointed under the
Criminal Justice Act, the U.S. Mar-
shals Service, and the Probation Serv-
ice will be millions of dollars. The
Solicitor General's petition also noted
the impact resentencing hearings will
have on district court calendars. '

Appeals raising the constitutional-
ity issue have been filed in all of the
regional circuit courts of appeals ex-
cept the First and D.C. Circuits. ■

^ BULLETIN OF THE FEDERAL COURTS

theTHIRDbranch

First
Class
MaU

VoL20 No. 7 July 1988

The Federal Judicial Center

1520 H Street, N.W.
Washington, DC 20005

Official Business

Postage and

fees paid

United States

Courts

UMIVERSITY OF ILLINOiS
LAW LIBRARY

JUL 1 2 198

FEDERAL DEPOSITORY

U.S. GOVERNMENT PRINTING OFHCE 1988-201-733-80005

BULLETIN OF THE FEDERAL COURTS

mi m

fheTHIRDbranch

VOLUME 20
NUMBERS
AUGUST 1988

Magistrates' and Bankruptcy Judges' Retirement
nd Survivors Bill Closer to Passage

A bill to provide enhanced retire-
ent and survivors' annuities for
inkruptcy judges and magistrates,
.R. 4340, was passed by the House

1 July 1 1 . The same day, the House
nended S. 1630, the Senate version

the bill, to contain the language of
•R. 4340 as passed, and passed
1630. The bill will now be taken up
■ a House-Senate conference.
Two bills to provide enhanced re-
ement and survivors' annuities
2re introduced in 1987— H.R. 2586,
• Rep. Robert W. Kastenmeier (D-
is.), and S. 1630, by Sen. Howell T.
jflin (D-Ala.). Representatives of
s Judicial Conference of the United
ites testified at congressional hear-
ts in support of those bills (see The
ird Branch, December 1987, at 1).
le bills as originally introduced
3uld not have required contribu-
•ns by the bankruptcy judges or
agistrates; the House version was
er amended to require contribu-
•ns and reintroduced as H.R. 4340;

2 Senate version passed in its origi-
1 form (see The Third Branch, April
88, at 3).

rhe bill as passed by the House July

11 would require contributions of 3
percent of salary by bankruptcy
judges or magistrates; would vest full
retirement benefits after 15 years; and
would provide that retirement bene-
fits are to equal 100 percent of the
bankruptcy judge's or magistrate's
salary, but that an individual who
leaves office before age 65 has his or
her pension reduced by 2 percent per
year for each year under 65 he or she
was at the time of leaving office. The
bill would provide that cost-of-living
increases shall not be paid to those re-
tired magistrates and bankruptcy
judges who are practicing law and
thus not eligible for recall to judicial
service. Annuities for retirees with 8-
14 years of service would be com-
puted proportionally by dividing the
years of service by 14, and would be
payable at age 65 for life. The bill
would also permit bankruptcy judges
and magistrates to participate in the
Judicial Survivors' Annuity System
(JSAS).

Rep. Kastenmeier, presenting what
he termed the "fiscally realistic pack-
age" of H.R. 4340, stated that
See LEGISLATION, page 4

p. Carlos J. Moorhead (R-Cal.), Chief Judge Charles Clark (5th Cir.), and Chief
>tice Rehnquist at a reception at the Supreme Court to rna^k^|^^^iBnin5~^^tp.]:^\y-;l:^T :,
Bsident Reagan on June 27 of S. 952 (Pub. L. 100-352), giving t^e,i^wp|-'^€!^CQurl
Jre control over its docket through greater discretion in selecting the cases it will
new. More photographs on pages 4-5. r ■ i o ^ 1 •

AUb ' ! t.HHy

Bankruptcy Courts in
Three Districts Use
Computer-Synthesized
Voice System for Calls

Bankruptcy courts in three federal
districts are now able to answer tele-
phone inquiries for case information
by means of a new computer service,
the Voice Case Information System
(VCIS), a computer-generated syn-
thesized voice that answers callers'
questions. Personnel from the FJC's
Innovations and Systems Develop-
ment Division installed VCIS this
summer in the Western District of
Washington (which includes Seattle
and Takoma), the Western District of
New York (which includes Buffalo
and Rochester), and the Western Dis-
trict of Texas (which includes San
Antonio and Austin).

Callers dial the special VCIS tele-
phone number, using any touch-tone
telephone, and enter the name of an
individual or organization. Names
are entered by pressing the telephone
keys that correspond to the letters in
the debtor's or party's name. The
caller then presses the "pound" key
("#") to indicate that the name has
been entered. The voice synthesizer
responds a few seconds later with
such information as the case number;
which chapter of the Bankruptcy
Code is the basis for jurisdiction; the
debtors' names (and if an adversary
proceeding, names of principal ad-
versaries); the debtor's attorney's
name, telephone number (if avail-
See VOICE SYSTEM, page 2

Inside . . .

ABA, AO Hold Death Penalty
Resource Conference p. 3

D.C. and Third Circuit Courts

■j.'j

of Appeals Appoint Circuit
Executives p. 3

FEDEHA.L DEPOSITORY

theTHIRDbranch

VOICE SYSTEM, from page 1
able), or city; the trustee's name; the
presiding judge's name; the case
status; the date and location of the
341 creditor meeting (if available);
and the discharge and closing dates.
All updates to existing cases are in-
stantaneously available upon entry by
court personnel. The system is acces-
sible seven days a week.

VCIS saves staff time and offers an
inexpensive way to obtain case infor-
mation. There is no charge to callers
for using the service. The number of
calls to the VCIS systems in the West-
ern District of Washington and the
Western District of Texas has been
averaging over 400 per day. Charles
W. Vagner, Clerk of the Western Dis-
trict of Texas, said that use of VCIS
has reduced calls for bankruptcy in-
formation taken by staff by "more
than half," and that the calls the staff
has continued to receive are now re-
ferred to the new number, so that a
further reduction in calls is expected.
Lewis P. Stephenson, Bankruptcy
Clerk in the Western District of
Washington, said, "Thus far the re-
sults have been most promising in
giving better public access to bank-
ruptcy information. The system has
significantly reduced the time spent
by the court phone receptionist in
anwering these routine calls and al-
lowed a more thorough response to
non-roudne calls."

VCIS operates as part of the BAN-
CAP software package developed by
the Center for use by the bankruptcy

BULLETIN OF THE FEDERAL COURTS

theTHIRDbranch

Published monthly by the Administrative
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'Donneil, Director, Division of
Inter-Judicial Affairs and Information
Services, Federal Judicial Center. Peter G.
McCabe, Assistant Director, Program
Management, Administrative Office of the
U.S. Courts.
August 1988

courts. BANCAP is part of the Inte-
grated Case Management System
(ICMS) developed by the Center.
ICMS also includes the CIVIL pro-
gram, used by the district courts, and
NewAIMS, used by the appellate
courts. For more information about
VCIS, call Michael Greenwood or
John Hillenbrand of the Center's In-
novations and Systems Development
Division at (202) 633-6400.

The Center will further evaluate
and refine this service for the remain-
der of 1988. Over time, VCIS may be
made available to other bankruptcy
courts installing the BANCAP sys-
tem.

VCIS is the first of several technolo-
gies the Center is evaluating that may
improve public access to court infor-
mation. Future issues of The Third
Branch will describe the Center's
evaluation of other useful technolo-
gies such as dial-in access to informa-
tion, electronic bulletin boards, touch-
screen information access by court
visitors, and electronic filing of docu-
ments. "

Personnel

CIRCUIT JUDGES

Nominations

John M. Duhe, Jr., 5th Cir., June 28

Jacques L. Wiener, Jr., 5th Cir., June 28

DISTRICT JUDGES

Nominations

Marvin J. Garbis, D. Md., July 6

Appointment

Lowell A. Reed, E.D. Pa., May 6

Senior Status

Daniel H. Huyett III, E.D. Pa., May 1

BANKRUPTCY JUDGE
Appointment

Bernice B. Donald, W.D. Tenn., June 27

MAGISTRATES (FULL-TIME)
Appointment

John W. Primomo, W.D. Tex., July 18
Deborah A. Robinson, D.D.C., July 18

Retirement

Jamie C. Boyd, W.D. Tex., June 30

Calendar <

Aug. 1-5 Orientation Seminar for
New Probation and Pretrial Officers

Aug. 15-17 Workshop for Case Man-
agers

Aug. 15-19 Seminar for Chief Proba-
tion and Pretrial Clerks

Aug. 16-19 Ninth Circuit Judicial
Conference

Aug. 17-19 Seminar for Magistrates ol
the Fifth and Eleventh Circuits

Aug. 21-23 Workshop for Problem-
Solving

Aug. 22-26 Supervisory Skills Semi-
nar

THE BOARD OF THE
FEDERAL JUDICIAL CENTER

Chairman

The Chief Justice
of the United States (

Judge Alvin B. Rubin

United States Court of Appeals

for the Fifth Circuit

Judge J. Clifford Wallace

United States Court of Appeals

for the Ninth Circuit

Judge Jose A. Cabranes

United States District Court

District of Connecticut

Chief Judge William C. O'Kelley
United States District Court
Northern District of Georgia

Judge David D. Dowd, Jr.

United States District Court
Northern District of Ohio

Judge Robert E. Ginsberg

United States Bankruptcy Court

Northern District of Illinois

L. Ralph Mecham, Director

Administrative Office of the

United States Courts

Federal Judicial Center m

Judge John C. Godbold, Director ^
Charles W. Nihan, Deputy Director

BULLETIN OF THE
FEDERAL COURTS

^BA, Administrative Office's Defender Services
Division Hold Death Penalty Conference

A national death penalty resource
planning conference, intended to
help develop permanent ways of
ensuring effective representation in
postconviction capital cases, was
held recently in Oakland, Cal. The
conference was presented by the
ABA's Postconviction Death Penalty
Representation Project in coopera-
tion with the Administrative Office's
Defender Services Division.

Approximately 125 judges, pro-
fessors, practitioners, and other in-
terested persons from the federal
court system and from states with
the death penalty shared specific in-
formation and guidance on the de-
velopment, funding, and implemen-
tation of death penalty resource cen-
ters and other sources of support.
The Judicial Conference of the
United States has determined that
funding can be made available un-
der the Criminal Justice Act to death
penalty resource centers that can
provide counsel in individual cases,
as well as guidance and support to
appointed attorneys in death penalty
cases.

Judge Stephanie K. Seymour (10th
Cir.), Chair of the Defender Services
Committee of the Judicial Confer-
ence, and Robert D. Raven, Presi-
dent-elect of the ABA, welcomed
conferees to the two-day meeting.

Chief Judges Odell Horton (W.D.
Tenn.) and Lawrence K. Karlton
(E.D. Cal.) and Judge Eugene P.
Spellman (S.D. Fla.) participated in a
presentation on coordination be-
tween the federal judiciary and the
state systems and coordination
within federal circuits in providing
representation to persons sentenced
to death.

The conference also included
workshops on securing state and
private funding; federal funding
policies and procedures; building
support for death penalty case re-
sources on the state level; and the

role of the federal judge. Participants
were provided with materials for
death penalty resource planning,
such as sample resource center pro-
posals, a "model addendum" for use
in amending district CJA plans to
designate resource centers as com-
munity defender organizations, and
the grant terms and conditions that
death penalty resource centers
would be expected to meet in order
to receive sustaining grants.

In 1986, a committee of the Judi-
cial Conference began a study of the
impact of the projected influx of
death penalty cases reaching the
postconviction stage in federal
courts. In 1987, the Judicial Confer-
ence approved changes in the Guide-
lines for the Administration of the
Criminal Justice Act in light of that
committee study and of reports of
task forces established by the chief
judges of the courts of appeals (see
The Third Branch, January 1988, at 1).
The ABA's Postconviction Project
was established in 1986 because of
the ABA's concern about the grow-
ing need for counsel in death penalty
cases. ■

Linda Tinkelstein,
John Hehntan Chosen
As Circuit Executives

Linda J. Finkelstein has been ap-
pointed Circuit Executive for the
Court of Appeals for the District of
Col umbi a,
and John P.
Hehman has
been ap-

pointed Cir-
cuit Executive
for the Third
Circuit.

Finkelstein
previously

served as di- Linda }. Finkelstein

rector of the Multi-Door Dispute
Resolution Program of the D.C. Supe-
rior Court, a
program she
developed,
and as direc-
tor of that
court's Divi-
sion of Re-
search, Evalu-
ation, and
Special Proj-
ects. The

12?

John P. Hehman

See EXECUTIVES, page 7

Appeals Up, Civil Filings Down, AO Data Show

The AO's Statistical Analysis and
Reports Division has released the
report Federal Judicial Workload Statis-
tics— March 1988, summarizing the
workload of the courts for the year
ended Mar. 31, 1988. During that pe-
riod, filings in the 12 regional courts
of appeals rose more than 6 percent to
36,871 . Much of the increase occurred
in appeals of federal and state pris-
oner petitions, which rose by more
than 1,000 cases. Dispositions of ap-
peals rose 5 percent during the year,
and terminations of appeals on the
merits rose 6 percent.

The number of civil filings in U.S.
district courts dropped 2 percent from
the previous year, to 236,459 cases,
continuing a trend of reduction that

began approximately two years ago.
For the one-year period, there was a
drop in U.S. plaintiff filings for recov-
ery of overpayments of veterans' bene-
fits from 22,925 in 1987 to 15,595 in
1988. Cases involving claims of per-
sonal injury product liability decreased
by 1,910 filings. Claims for disability
insurance and for supplemental secu-
rity income rose, as did prisoner civil
rights suits and Employment Retire-
ment Income Security Act cases. Pend-
ing civil cases in the district courts in-
creased by 1 percent for the year.
Criminal cases filed in the district
courts increased 4 percent.

Bankruptcy petitions filed increased
7 percent, and bankruptcy termina-
tions increased 27 percent.

August 1988

theTHIRDbranch

1 HE OURCE

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 mailing
label, preferably franked (but do not send an
envelope), and addressed to Federal Judicial
Center, 1520 H St., N.W., Washington, DC
20005.

Blackmun, Harry A. "John Jay and
the Federalist Papers." 8 Pace L. Rev.
237 (1988).

Bloomenstein, Adam H. "Develop-
ing Standards for the Imposition of
Sanctions Under Rule 11 of the Fed-
eral Rules of Civil Procedure." 21 Ak-
ron L. Rev. 289 (1988).

Boren, Don. "Suits Against States
in Federal Court: The Current Elev-
enth Amendment Controversy." 25
American Business L.J. 701 (1988)

Brazil, Wayne D. Effective Ap-

proaches to Settlement: A Handbook for
Laxvyers and Judges. Prentice Hall,
1988.

Bucklo, Elaine E. "Can a Party Be
Required to Attend Trial?" 14 Litiga-
tion No. 3 at 33 (Spring 1988).

Coffin, Frank M. "Judicial Balanc-
ing: The Protean Scales of Justice." 63
New York University L. Rev. 16 (1988).

Cooper, Philip J. Hard Judicial
Choices: Federal District Court Judges
and State and Local Officials. Oxford
University Press, 1988.

Corr, John B., and Ira P. Robbins.
"Interjurisdictional Certification and
Choice of Law." 41 Vanderbilt L. Rev.
411 (1988).

DiPippa, John M. A. "Suspending
Imposition and Execution of Criminal
Sentences: A Study of Judicial and
Legislative Confusion." 10 University
of Arkansas at Little Rock L.J. 367 (1987-
88).

Guynes, Randall, and Neal Miller.
"Improving Court Productivity: Two
New Jersey Experiences." NIJ Reports,
March/ April 1988, at 2.

Hartmann, Allen. "'Judges Majf
Differ': Another Look at Judicial De-
cision-Making." 76 Illinois Bar J. 540
(1988).

Klein, Andrew R. Alternative Sen-
tencing: A Practitioner's Guide. Ander-
son, 1988.

Litan, Robert E. and Clifford Win-
ston, eds. Liability: Perspectives and
Policy. Brookings Institution, 1988.

Marsel, Robert S. "The Constitu-
tional Jurisprudence of Justice Potter
Stewart: Reflections on a Life of Pub-
lic Service." 55 Tennessee L. Rev. 1
(1987).

Mello, Michael. "Facing Death
Alone: The Post-Conviction Attorney
Crisis on Death Row." 37 American
University L. Rev. 513 (1988).

Mengler, Thomas M. "Consent De-
cree Paradigms: Models Without
Meaning." 39 Boston College L. Rev.
291 (1988).

Mikva, Abner J. "Jumping at Con-
stitutional Questions Is Risky Busi-
ness." 14 Litigation No. 3 at 5 (Spring

1988).

See SOURCE, page S

LEGISLATION, from page 1
"chances of the measure . . . [to] be
enacted would be enhanced," and
that because the Senate-passed ver-
sion contained the originally intro-
duced formula, "any compromise in
conference would be even more gen-
erous" than H.R. 4340.

The following measures pending
before Congress are also of interest to
the judiciary.

• The Senate passed S. 11, which
would authorize judicial review of
decisions of the Administrator of the
Veterans Administration on claims
for benefits and would repeal the
prohibition on fees in excess of $10
for attorneys representing veterans in
benefit claim cases. A separate bill
passed the same day by the Senate,
S. 533, would establish a Cabinet-
level Department of Veterans Affairs.

• Sen. Howell Heflin (D-Ala.) intro-
duced S. 2601, a bill to amend 28
U.S.C. § 371 to allow a federal judge
who is at least 60 years of age and has

completed 20 years of service to take
senior status. Sens. Dennis DeConcini
(D-Ariz.), Edward M. Kennedy (D-
Mass.), and Arlen Specter (R-Pa.) are
cosponsors of the bill. S. 2601 would
permit election of senior status by a
judge between the ages of 60 and 65 if
the judge's age and years of service
equal 80. Sen. Heflin said that his bill
would be "more equitable for those
judges who enter judicial service at
an earlier age." A similar measure,
H.R. 3726, has been introduced in the
House (see The Third Branch, February
1988, at 7).

• The House Judiciary Committee
July 26 ordered reported H. Res. 499,
impeaching Judge Alcee L. Hastings
(S.D. Fla.). The full House is sched-
uled to consider the resolution on
Aug. 3.

• H.R. 4842, an anti-drug bill, was
introduced by Rep. Robert Michel (R-
111.). The bill also contains provisions
that would abolish diversity jurisdic-
tion and enlarge the rule of U.S. v.

Leon, 468 U.S. 897 (1984), to warrant-
less searches. Leon established a
"good faith" exception to the Fourth
Amendment exclusionary rule where
police act in objective good faith and
in reliance on a warrant. H.R. 4807,
the renumbered "clean bill" based on
H.R. 3152, also contains provisions
that would essentially abolish diver-
sity jurisdiction (see The Third Branch,
June 1988, at 2).

• The Subcommittee on Public
Buildings and Grounds of the House
Public Works Committee held a hear-
ing on S. 1934, the bill that would
provide for construction of an office
building for federal judicial agencies
and retired Supreme Court Justices ir
Washington, D.C. The subcommittee
approved S. 1934, as amended, foi
full committee action. S. 1934 has al
ready passed in the Senate (see Th
Third Branch, July 1988, at 5). I

• A House committee approvec
H.R. 1115, a bill to establish a federa
standard in products liability cases. i

August 1988

BULLETIN OF THE rh
FEDERAL COURTS *P

The Supreme Court hosted a reception for legislators and other guests at the Court to mark the signing into law by
President Reagan on June 27 of S. 952 (Pub. L. 100-352), an act giving the Court greater discretion in selecting the cases
it will review by eliminating mandatory review in several areas (see The Third Branch, May 1988, at 6). Among those
in attendance were (from left) ABA President Robert MacCrate; Justice Antonin Scalia; Justice Lewis F. Powell (ret.);
?en. Howell Heflin (D-Ala.); Chief Justice William H. Rehnquist; Sen. Dennis DeConcini (D-Ariz.); Justice Anthony
Kennedy; Rep. Robert Kastenmeier (D-Wis.); Justice John Paul Stephens; and Rep. Carlos Moorhead (R-Cal.). Chief
fustice Rehnquist had previously described the bill's passage as "the primary legislative goal of the Court" (see The
Third Branch, July 1988, at 5).

Rep. Robert Kastenmeier (D-Wis.),
Chairman of the House Judiciary
Committee's Subcommittee on
Courts, Civil Liberties and the Ad-
ministration of Justice, and Sen.
Howell Heflin (D-Ala.), Chairman of
the Senate Judiciary Committee's
jpubcommittee on Courts and Ad-
ministrative Practice, principal co-
sponsors of the bill that became Pub.
L. 100-352, at the reception.

SOURCE, from page 4

Miner, Roger J. "Federal Courts at
the Crossroads." 4 Constitutional Com-
mentary 251 (1987).

"1987 Survey of Books Relating to
the Law." 85 Michigan L Rev. Nos. 5
& 6 (1987).

Norgren, Jill, and Serena Nanda.
American Cultural Pluralism and Law.
Pracger, 1988.

Payor, Susan Margaret. "Post-Judg-
ment Interest in Federal Courts." 37
Emory L.J. 495 (1988).

Posner, Richard A. "The Jurispru-
dence of Skepticism." 86 Michigan L.
Rev. 827 (1988).

Rehnquist, William H. "The Su-
preme Court: 'The First Hundred
Years Were the Hardest'." 42 Univer-
sity of Miami L. Rev. 475 (1988).

Resnik, Judith. Due Process: A Public
Dimension. Rand Corp., Institute for
Civil JusHce (1988).

Rieger, Carol T. "The Judicial
Councils Reform and Judicial Con-

duct and Disability Act: Will Judges
Judge Judges?" 37 Emory L.J. 45
(1988).

Rowland, C.K., Donald Songer, and
Robert A. Carp. "Presidential Effects
on Criminal Justice Policy in the
Lower Federal Courts: The Reagan
Judges." 22 Law & Society Rev. 191
(1988).

Stephens, Pamela J. "Controlling
the Civil Jury: Towards a Functional
Model of Justification." 76 Kentucky
L.J. 81 (1987-88).

"Symposium — Perspectives on Pro-
posals for a Constitutional Amend-
ment Providing Victim Participation
in the Criminal Justice System." 34
Wayne L. Rev. 1 (1987).

Tabb, Charles Jordan. "The Bank-
ruptcy Reform Act in the Supreme
Court." 49 University of Pittsburgh L.
Rev. 477 (1988).

Torry, Saundra. "Lawyers Scramble

to Fill Void in Death Row Appeals."

See SOURCE, page 7

August 1988

theTHIRDbranch

Noteworthy

Rule 16 does not authorize court
to require represented parties to
appear at settlement conferences.
Seventh Circuit says. Fed. R. Civ. P.
16(0 does not provide the authority
for a district court to order repre-
sented parties to appear at settlement
conferences, the Seventh Circuit held
recently. G. Heileman Brexving Co. v.
Joseph Oat Corp., No. 86-3118 (7th Cir.
June 13, 1988). Both the magistrate
and the district court found authority
in rule 16 to order defendant Oat to
send someone other than its counsel
to the conference. Oat sent its attor-
ney to the settlement conference, but
he had authority to settle only if Oat
would not be required to pay money
as a condition of settlement. The mag-
istrate conducting the settlement con-
ference decided that Oat had violated
his order that each party be repre-
sented at the conference by counsel
and by a representative having full
authority to settle. The magistrate
sanctioned Oat under rule 16(f), and
after a hearing ordered Oat to pay the
expenses incurred by other parties in
attending the conference, including
attorneys' fees. Oat asked the district
court to reconsider the magistrate's
order. The district court upheld the
sanctions, reasoning that it needed
the ability to conduct productive set-
tlement conferences to manage its
caseload effectively, and that settle-
ment conferences without the parties
present are not productive. G. Heile-
man Brewing Co. v. Joseph Oat Corp.,
107 F.R.D. 275 (W.D. Wis. 1985).

On appeal, the Seventh Circuit
noted that "Rule 16(f) does not state
that the court may actually order a
represented party to appear. Rule
16(a), however, specifically addresses
who the district court may order to
appear. Rule 16(a) states that those
people are attorneys and unrepre-
sented parties. ... But nothing in
Rule 16(f) specifically authorizes a
district court to order a represented
August 1988

party to appear at a settlement con-
ference." The Seventh Circuit said
that this result was "consistent with
other cases from this circuit indicat-
ing that Rule 16's specific language
limits a court's authority over pretrial
proceedings," including Strandell v.
Jackson County, 838 F.2d 884 (7th Cir.
1988), which held that district courts
do not have the authority to order
litigants or their attorneys to partici-
pate in summary jury trials (see The
Third Branch, March 1988, at 3).

Court may require parties to par-
ticipate in summary jury trial, M.D.
Fla. rules. A district court in the
Middle District of Florida has held
that it is within the court's powers
under the Federal Rules of Civil Pro-
cedure and Article 111 of the
Constitution to require parties to
participate in a summary jury trial.
Arabian American Oil Co. v. Scarfone,
119 F.R.D. 448 (M.D. Ra. Apr. 4,
1988). Defendants, in support of their
motion to be excused from participa-
tion in the summary jury trial, cited
the Seventh Circuit's Strandell deci-
sion (see item above). One defendant
also stated that he lived and worked
abroad and that it would be very
expensive for him to attend the sum-
mary jury trial. The court did not find
Strandell persuasive; it noted that the
district has a backlog of cases await-
ing trial and has used the summary
jury trial device since 1985. The sum-
mary jury trial would take two days,
while the parties had estimated that
the actual trial of the case would
require seven weeks. The court
pointed to Fed. R. Civ. P. 16 as one
basis for summary jury trials, noted
that Fed. R. Civ. P. 1 requires courts
to secure to litigants just, speedy, and
inexpensive determination of their
claims, and stressed the court's inher-
ent authority under Article 111 to per-
form the task of administering justice.
Moreover, the court noted, if the
summary jury trial does not lead to
settlement, the parties are still en-
titled to all of their substantive rights,
including the right to a binding trial.
The court left open the possibility that

defendants could be excused fromJ
participating in the summary jury
trial due to inability to appear for
financial reasons, saying that such
reasons should be addressed by the
magistrate before whom the sum-
mary trial was scheduled.

At least one other district court,
also disagreeing with Strandell, has
upheld a requirement that parties
participate in a summary jury trial.
Williams v. Hall, No. 84-149 (E.D. Ky.
Apr. 5, 1988) (discussed in The Third
Branch, June 1988, at 2).

Successor judge must retry case
when previous judge had not yet
made findings of fact and conclu-
sions of law. Where a district judge
recused himself before making find-
ings of fact or issuing any rulings, the
successor judge could not make nec-
essary credibility determinations and
therefore was required to retry the
case, the Eleventh Circuit has held.
Emerson Electric Co. v. General Electric
Co., 846 F.2d 1324 (11th Cir. 1988). Ii(
a contract action, the district judge
conducted a bench trial and took the
case under submission. Before mak-
ing any findings of fact or issuing any
rulings, the judge recused himself
because he owned stock in one of the
parties. The case was reassigned to a
different judge, who issued a memo-
randum opinion and entered judg-
ment in favor of Emerson on the basis
of the trial transcript. General Electric
filed a motion for new trial or, in the
alternative, to alter or amend the
judgment, asserting that the district
court had been required to resolve an
issue of credibility without having
had the opportunity to observe the
demeanor of witnesses. The district
court denied the motion, and General
Electric appealed.

The Eleventh Circuit discussed
Fed. R. Civ. P. 63, which does nol
explicitly cover instances in which the
presiding judge recuses himself be-
fore filing findings of fact and conclii
sions of law. Courts have, howevef
read into rule 63 the inference that il
the presiding judge in a civil case has
See NOTEWORTHY, page :

JVJOTEWORTHY, from page 6
yet to issue findings of fact and con-
clusions of law, a successor judge
must retry the case, the court noted.
Two exceptions to this interpretation
have developed: where all parties
consent to the successor judge's mak-
ing findings of fact and conclusions of
law based on the trial transcript; and
where the trial transcript serves es-
sentially as "supporting affidavits"
for summary judgment purposes and
no credibility determinations are re-
quired. Since both parties had not
consented to resolution based on the
transcript, and credibility determina-
tions were required, the case must be
retried, the Eleventh Circuit held.

Judge not present during trial
may impose sentence where suffi-
cient familiarity with trial existed. A
judge who was not present during
the trial and who had been unable to
review the trial transcript prior to
sentencing could nonetheless impose
sentence in a complex criminal case
where he was sufficiently familiar
tvith the trial, the Eleventh Circuit
iias held. U.S. v. Caraza, 843 F.2d 432
;ilth Cir. 1988). Defendants were
:onvicted of violating federal drug
aws. They were sentenced by a judge
Dther than the one who presided over
:he trial. At the time of the sentencing
learing, the trial transcript was un-
ivailable. On appeal, defendants ar-
gued that a judge who was not pres-
ent during the trial of a complex case
nay not impose sentence without
■irst having read the trial transcript,
rhe court of appeals noted that the
ientencing judge was quite familiar
^'ith the trial. He had ruled on nu-
nerous pretrial motions while the
:ase was pending before him. He met
ivith the presiding judge to discuss
he trial during its progression. The
listrict court's order noted that the
sentencing judge would consult with
he presiding judge before the impo-
lition of sentence. The Eleventh Cir-
^it dishnguished the case relied on
)y the appellants, in which the record
lisclosed nothing to indicate that the

sentencing judge had familiarized
himself with the trial. In the instant
case, there was "ample evidence that
[the sentencing judge] was familiar
enough with the trial to impose sen-
tence," the court held. 843 F.2d at
437.

Magistrate may preside over jiuy
selection. Second Circuit holds. It is
permissible for a magistrate to pre-
side over jury selection in a felony
trial, the Second Circuit has held,
thus reaching a conclusion different
from that of the Fifth Circuit. U.S. v.
Garcia, No. 87-1243 (2d Cir. June 1,
1988); contra, U.S. v. Ford, 824 F.2d
1430 (5th Cir. 1987), cert, denied, 108 S.
Ct. 741 (1988) (see The Third Branch,
October 1987, at 2). A magistrate
presided over jury selecHon, and a
trial of defendants was held before a
district judge on various narcotics
charges. On appeal, defendants ar-
gued that 28 U.S.C. § 636 precludes
the delegation of jury selection to a
magistrate, and that such a delegation
contravenes Article III of the
Constitution. The court of appeals
rejected these arguments. Jury selec-
tion delegation is within the scope of
28 U.S.C. § 636(b)(3) and is consistent
with the Federal Magistrates Act, and
such delegation is permissible even
absent a defendant's consent, the
Second Circuit held. Moreover, such
a delegation does not violate Article
III where the district court affords de
novo review of unsustained chal-
lenges to jurors for cause. ■

EXECUTIVES, from page 3
Multi-Door Dispute Resolution pro-
gram offers a variety of alternatives to
litigation and is a national model proj-
ect of the ABA. Finkelstein was also
involved in other dispute resolution
programs at the D.C. Superior Court,
including Settlement Week. She has
also worked at the White House, the
U.S. Department of Education, and
the Office of Personnel Management.
She is a graduate of Simmons College
and did graduate work at Boston
College.
Hehman had served as Clerk of the

BULLETIN OF THE ^
FEDERAL COURTS d)|6

SOURCE, from page 5

Washington Post, July 24, 1988, at All.

Uviller, H. Richard. Tempered Zeal:
A Columbia Law Professor's Year on the
Streets With the New York City Police.
Contemporary, 1988.

U.S. Courts — District of Columbia
Circuit Report 1987. Chief Judge and
Circuit Executive of the D.C. Circuit.

U.S. Courts — Eighth Circuit Annual
Report 1987. Chief Judge and Office
of the Circuit Executive.

U.S. Government Accounting Of-
fice. Product Liability: Extent of Litiga-
tion Explosion in Federal Courts Ques-
tioned. GAO, 1988.

Watson, Andrew S. "Some Psycho-
logical Aspects of the Trial Judge's
Decision-Making." 39 Mercer L. Rev.
937 (1988).

Whitten, Ralph U. "Separation of
Powers Restrictions on Judicial Rule-
making: A Case Study of Federal
Rule 4." 40 Maine L. Rev. 41 (1988).

Wilkins, William W., Jr. "Plea Ne-
gotiations, Acceptance of Responsibil-
ity Role of the Offender, and Depar-
tures: Policy Decisions in the Promul-
gation of Federal Sentencing Guide-
lines." 23 Wake Forest L. Rev. 181
(1988).

"Women and the Constitution:
Presentations from the 1987 Eighth
Circuit Judicial Conference, Colorado
Springs, Colorado, July 17, 1987"
(including presentations by Judges
Ruth Bader Ginsburg, Constance
Baker Motley, and Diana E. Murphy).
6 Law & Inequality 1 (1988). ■

Court of Appeals for the Sixth Circuit
since 1974. He is a graduate of the
U.S. Air Force Academy and Salmon
P. Chase College of Law, and a fellow
of the Institute for Court Manage-
ment. He has served on the Board of
Directors of the American Judicature
Society and as a member of the Advi-
sory Council of the Institute for Court
Management. He chaired the U.S.
Appellate Courts Clerks' Standing
Committee, chaired the New AIMS
users group, and has served as a
member of the Steering Council of the
Federal Court Clerks Association. ■

August 1988

theTHIRDbranch

Clerk of U.S. Bankruptcy Court, D-Vt.,

Rutland. Starting salary to $46,679. Ap-
pointed pursuant to 28 U.S.C. § 156. Requires
bachelor's degree; graduate degree in public
or business administration or law desirable.
Must possess executive ability demonstrated
by progressively responsible administrative
experience. Starting date Nov. 1, 1988. Submit
cover letter addressing scope of the
applicant's managerial achievement, and res-
ume (in triplicate, shovwng size of current
organization's budget, and number and com-
position of personnel) by Aug. 31, 1988, to Se-
lection Committee, c/o Hon. Francis G.
Conrad, U.S. Bankruptcy Court, P.O. Box
6648, Rutland, Vt 05701-6648.

Special Master, U.S. Claims Court, Wash-
ington, DC. Salary $54,907 to $72,500 (subject
to funding; statute under which work is to be
performed becomes effective Oct. f, 1988).

Positions Available

Special master to serve as adjunct to the court
under the National Childhood Vaccine Injury
Act of 1986. Must be member of bar with at
least 5 years' active practice of law; time spent
as a judge, judicial law clerk, attorney for fed-
eral or state agency, and other qualifying legal
experience may count toward the 5 years. Send
resume to Gary Golkiewicz, Esq., Chief of Staff,
U.S. Qaims Court, 717 Madison Place, N.W.,
Washington, DC 20005.

Clerk/Court Executive Officer, N.D. Cal.
Entry level salary $64^97 per year. Provides all
administrative support services required by the
court; supervises a staff of 107 employees and
provides support services to over 300 judicial
officers and staff. Must have 10 or more years'
progressively responsible management experi-
ence, thorough understanding of automation
concepts and applications, and undergraduate
degree, preferably in public or business admini-

EQUAL OPPORTUNITY EMPLOYERS

stration or related area; law degree or gradu-
ate degree in court or prublic administration
desirable and may be substituted for 2 years
of the required experience. To obtain applica-
tion write to William L. Whittaker, Qerk, U.S.
District Court, 450 Golden Gate Ave., San
Francisco, CA 94102 (415) 556-2338. AppUca-
tions must be received by Sept. 15, 1988; in-
cumbent to retire in March 1989.

Chief Deputy Clerk, U.S. Court of Ap-
peals, Sixth Cir. Salary $27,716 to $54,907. Re-
quirements: 6 years' progressively responsible
managerial or administrative experience, law
degree from accredited law school; degree in
public, business, or judicial administration or
in law may be partially substituted for the re-
quired experience. Send resume with cover
letter by Sept. 1, 1988, to Leonard Green,
Qerk, 538 USPO & Courthouse Building, Cin-
cinnati, OH 45202. Open until filled.

r|> BULLETIN OF THE FEDERAL COURTS

theTHLvu branch

Vol.20 No. 8 August 1988

The Federal Judicial Center

1520 H Street, N.W.
Washington, DC 20005

Official Business

First
Class
Mail

Postage and

fees paid

United States

Courts

U.S. GOVERNMENT PRINTING ORFICE 1988-201-733-80006

BULLETIN OF Tl IE FEDERAL COURTS

SEP 2 6 1988

GOVTj DOC

f "'" ii'^nm

I'heTHIRDbranch

VOLUME 20
NUMBER 9
SEPTEMBER 1988

letired Chief Justice Warren Burger Reflects on
developments in the Judiciary During His Tenure

Warren E. Burger was appointed Chief
istice of the United States by President
'ixon in 1969. He retired from the position
1 1986 to serve full time as Chairman of the
ommission on the Bicentennial of the U.S.
onstitution. In the following interview, he
scusses some of the changes in the federal
'.diciary during his years in service, accom-
'ishments in the field of judicial admini-
ration, and unfinished items on his agenda
r the courts.
One hallmark of
Qur tenure as Chief
istice was your sus-
lined attention to
le administrative
jpects of the judi-
al system — State
kd Federal. Were
\e changes you
jonsored starting in
J69 part of a pro-
ram that you had in
lind before you be-
une Chief Justice or
id they evolve as
ou went along?

1 can't say that I had
ny preconceived
Ian because my appointment came as a
ital surprise. But I was convinced that
»e system was not working as well as it
lould. I'd been saying that as early as
?57 when I spoke at the New York Uni-
?rsity Law School about "The Courts
n Trial." And I had been a close friend
F Warren Olney since we served to-
other in the Justice Department. When

2 was Director of the Administrative
ffice of the Courts, I worked with him
n some of the projects he began to
X)nsor such as experimenting with
;minars for new judges.

(My view of the system and its needs
so came from observations in private
ractice and the cases I argued in vari-
es circuits over the years. Then, while

Warren E. Burger

on the D.C. Court of Appeals, I sat as a
visiting judge in a number of circuits.
That gave me a valuable opportunity to
see how our system was working.

But didn't you bring a series of spe-
cific proposals to the American Bar
Association meeting in Dallas a few
weeks after your appointment?

Yes, and we should be grateful for the
ABA's work. It immediately acted on
those proposals and
others later on.

What were those
1969 proposals?

One was to create an
organization to train
court administrators.
In 1969 there was only a
handful of people in
the country that could
be considered profes-
sional and qualified
court administrators.
And they were self-
trained; there were no
training facilities. I put
the question to the
Institute of Judicial
Administration break-
fast meeting — "Court Administrators:
Where Would We Find Them?"— and
proposed creation of the Institute for
Court Management. Bernard Segal, the
ABA's incoming President, got the cor-
poration organized within 90 days.
Former Attorney General Herbert
Brownell became Chairman of the Insti-
tute and the Institute sessions began in
Denver with a full-time, one-year pro-
gram funded largely by L.E.A.A. and
foundation grants — including the
American Bar Association, the Ameri-
can Judicature Society, and the Institute
of Judicial Administration. The upshot
is that today hundreds of ICM gradu-
ates are working in the courts — mostly

See BURGER, page 5

Center to Conduct Time
Study of Bankruptcy
Judges' Work

Acting on a request from the Commit-
tee on the Administration of the Bank-
ruptcy System of the Judicial Confer-
ence of the United States, the Federal
Judicial Center will conduct a thorough
study of the work of bankruptcy judges.
The purpose of the study is to improve
the formula for determining the re-
quired number of bankruptcy judge-
ships.

Every bankruptcy judge will be asked
to keep careful records of work day ac-
tivities, using special diary forms sup-
plied by the Center for that purpose.
Both case-related and non-case-related
time will be recorded, so that the full
range of judicial activity can be de-
scribed.

The study will be conducted in five
waves of 10 weeks each, with approxi-
mately one-fifth of the judges being ask-
ed to participate in each wave. Multi-
judge courts will be represented in sev-
eral waves. The first wave of the study is
scheduled to begin in the second week
of October, with requests for participa-
tion going out approximately one
month earlier. The starting dates for the
second through the fifth waves are Dec.
26, Mar. 6, May 15, and July 31.

By collecting information over an

entire year, and by having each region

See TIME STUDY, page 11

Inside . . .

Bankruptcy Forms Revised. . . 2

D.D.C. Uses Computer to
Inform Visitors 3

ABA Annual Meeting 3

AO to Update Work Measure-
ment Formulas 4

theTHIRDbranch

Legislation

The following measures before Con-
gress are of interest to the judiciary.

• The House Judiciary Committee's
Subcommittee on Courts, Civil Liber-
ties, and the Administration of Justice
held a hearing on a number of bills to
revise the geographical or organiza-
tional configuration of individual judi-
cial districts; on H.R. 3726, a proposal to
revise the "rule of eighty" applied to
eligibility for senior judge status; and on
bills that would establish a Federal
Courts Study Commission.

Chief Judge Alexander Harvey II (D.
Md.) and Judge Edward R. Becker (3d
Cir.) testified on behalf of the Judicial
Conference at the hearing, and ad-
dressed the relevant statutory provi-
sions of title 28 and Judicial Conference
policies. The proposed changes in the
configuration of individual judicial dis-
tricts would affect the Districts of N.J.,
W.D. Ky., Md., M.D. Fla., S.D. Fla., and
E.D. Pa., and ranged in scope from the
addition of a statutorily designated lo-
cation for the holding of court in a given
district to the creation of a new division.
Judges Harvey and Becker's testimony
pointed out that statutorily designating
a community in 28 U.S.C. §§ 81-131 is
not a necessary prerequisite to a court's
sitting in a community, but is a pre-
requisite to building a courthouse there
or leasing commercial space for court-
rooms, chambers, and offices. Noting
that there are currently "dozens of

BULLETIN OF THE FEDERALCX)URTS

THETHIRDBRANCH

Published monthly by the Administrative
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 Information Serv-
ices, Federal Judicial Center. Peter G.
McCabc, Assistant Director, Program Man-
agement, Administrative Office of the U.S.
Courts.

September 1988

courthouses that are utilized less than
30 days per year," the judges pointed
out the costs of building unnecessary
courthouses and leasing unneeded
commercial space, which can be
avoided by not "statutorily designat-
ing" a community unless there is
"strong evidence of a great deal of court
work to be done there." They summa-
rized the Judicial Conference's policies
on changing districts' configurations,
and noted that the Conference has a
"general record" of approval of consoli-
dation of district court divisions and of
reduction of numbers of places of hold-
ing court.

H.R. 3726 would permit federal
judges between ages 60 and 64 to take
senior status if they have been on the
bench for 20 years or more. The Judicial
Conference has long supported the
concept embodied in the bill. A similar
bill, S. 2601, is pending in the Senate.
Judges Harvey and Becker testified that
H.R. 3726 would encourage younger
people to accept judgeships and to
remain on the bench, and would aug-
ment the federal judiciary by creating a
small group of federal judges who could
take senior status from one to five years
earlier than is currentiy allowed. (A
judge's assumption of senior status cre-
ates a vacancy in the judgeship for
which the President may nominate a

Center Releases Bankruptcy M
Mediation Report ^

Alternative Dispute Resolution in a
Bankruptcy Court: The Mediation Pro-
gram in the Southern District of Califor-
nia, by Steven Hartwell of the Univer-
sity of San Diego School of Law and
Gordon Bermant of the Center's Re-
search Division, is now available. The
publication reports on California
Southern's mediation program for ad-
versary proceedings and contested
matters, which was established in
1986.

The authors describe and analyze
the program as it developed through
the assignment of its first 80 adversary
proceedings to mediation. The report
is based on interviews with 26 partici-
pants in the program and on study of
the case files, which the authors de-
scribe and from which they draw infer-
ences.

Copies of the report can be obtained
from Information Services, 1520 H
Street, N.W., Washington, DC 20005.
Please enclose a self-addressed mail-
ing label, preferably franked (8 oz.), ^
but do not send an envelope. ft

successor.) H.R. 3726 would affect only
eligibility for senior status under 28
U.S.C. § 371(b), and would not change
current law that applies to a retirement
from office under 28 U.S.C. § 371(a).
See LEGISLATION, page 12

AO Task Force Revises Bankruptcy Forms

The Administrative Office has re-
leased two new manuals containing
procedural forms issued under the au-
thority of Bankruptcy Rule 9009, in-
structions for using the forms, and other
bankruptcy-related materials. Volume
I, Forms and Instructions for the Courts, is
designed for court use. Volume II, Forms
and Instructions for the Public, an
abridged version of Volume I, is de-
signed to assist the general public.

Volume I contains copies of the Offi-
cial Bankruptcy Forms promulgated by
the Judicial Conference, statistical re-
porting forms that the bankruptcy
clerks submit to the AO, internal clerk's
office forms, procedural forms issued
under Bankruptcy Rule 9009, and other
materials. Volume II is intended to be

kept at the intake counter so that it may
be consulted and photocopied by the
public. Instructions are provided for
each form, tailored to meet the needs of
the expected users. Frequent citations
are made to the applicable Bankruptcy
Rules and Bankruptcy Code sections.
Procedural hints are offered where
appropriate. Both volumes contain in-
dices with extensive cross-references.

The revised forms are the product of a
special task force of bankruptcy judges
and clerks and AO staff, chaired by
Peter G. McCabe, Assistant Director for
Program Management of the AO. J. Ted
Donovan, Assistant Chief of the Banrf
ruptcy Division, edited the forms and
prepared the instructions with the assis-
tance of visiting estate administrators.

BULLETIN OF THE
FEDERAL COURTS

■^

District Court in District of Columbia Using
frouch-Screen Computer to Inform Court Visitors

A touch-screen system that allows
rourt visitors to obtain information
"rom the computer system maintained
3y the court was installed in the District
lourt for the District of Columbia ear-
ier this summer by Federal Judicial
renter {personnel . The system is part of
» pilot program of testing technologies
hat also includes the computer-synthe-
iized voice system being used in three
bankruptcy courts (see The Third Branch,
August 1988, at 1), and a project allow-
ng computer users to dial in for access
o information.

The touch-screen system consists of a
■creen attached to a personal computer
hat contains a copy of the court's data-
)ase. The screen is divided into zones
ind displays some graphics. Visitors
ouch the portion of the screen display
>ffering the desired information, and
he next screenful of information ap-
)ears in response to the touch. A visitor
blowing a case number can quickly
krcess the short title of the case, the
ause of action, the nature of the suit, the
jdge's name, the filing date, the case's
ermination date, and the reopening
late. A visitor who knows only the
lame of a party can enter that name into
he system, which will then display an
ndexed list of all parties, giving the role
n the case of that party and the case

Ninth Circuit Holds

Sentencing Guidelines

Unconstitutional

The Ninth Circuit has affirmed two
lower court holdings that the Sentenc-
ing Guidelines are unconstitutional on
separation of powers grounds because
the Sentencing Reform Act places the
Commission in the judicial branch and
requires that three Article III judges
serve as members of the seven-person
Sentencing Commission that drafted
the guidelines. Gubiensio -Ortiz v. Ka-
nahele, No. 88-5848 (9th Cir. Aug. 23,
1988). The Supreme Court has already
granted certiorari before judgment in a
district court case raising the constitu-
tionality issue, and will hear arguments
in that case Oct. 5 (see The Third Branch,
July 1988, at 1).

number. The inquirer willthen be able
to access case information. The touch-
screen system is designed for use by
members of the public who may not
have much experience in requesting
information from the courts. It is located
in the public area of the clerk's office.

"Everybody who has used the system
likes it," according to Civil New Case
Clerk Yvonne Estrada-Perez. "Attor-
neys who have computers themselves
like the fact that the courts are coming
around to the type of technology they
have."

Persons who would like more infor-
mation about the touch-screen system
may contact Mike Greenwood or Robert
Borochoff of the Center's Innovations &
Systems Development Division, (202)
633-6400.

Yvonne Estrada-Perez, Civil New Case Clerk
(left), and Mary Thomas, secretary to Clerk of
Court fames F. Davey, inspect the touch-screen
system in use in D.D.C.

ABA Discusses Resolutions on Federal Court
Issues at Annual Meeting Held in Toronto

Several issues relating to the federal
courts were discussed at this yeaf's
annual meeting of the American Bar
Association, held last month in Toronto,
Canada. Some resolutions presented in
the House of Delegates and actions
taken thereon are listed below.

Changes to 28 U.S.C. Three major
resolutions to change 28 U.S.C, all from
the Committee on Federal Judicial Im-
provements, were submitted to the
House of Delegates. One was a resolu-
tion requiring certification by a district
court that a judgment or order is a final
decision (except for taxation of costs and
enforcement proceedings). This resolu-
tion was sent back to the Committee for
reconsideration.

The second resolution, which was
withdrawn, would have modified the
definition of corporate citizenship for
diversity jurisdiction purposes; in-
cluded in this second proposal was a
proviso that the cihzenship of a legal
representativeofanestateof a decedent,
an infant, or an incompetent must be
deemed to be in the home state of the
decedent, the infant, or the incompe-
tent. These changes are part of a bill

pending in Congress, H.R. 4807. (The
last ABA action on diversity jurisdiction
was taken in 1987, when the House ap-
proved a recommendation to increase
the amount in controversy requirement
to $50,000.)

A third resolution recommended that
Congress create a new multiparty,
multiclaim jurisdiction in diversity of
citizenship cases. This was also referred
back to the Committee.

Resolutions from Criminal Justice
Section. The Criminal Justice Section
submitted several resolutions for ABA
endorsement. One related to electroni-
cally monitored home confinement.
This resolution recommended that
three conditions be met when such a
sentence is imposed: (1) that the judge
find, on the record, that such electroni-
cally monitored home confinement is
the least restrictive alternative that can
be imposed consistent with the protec-
tion of the public and the gravity of the
offense; (2) that the judge or a probation
office not automatically require elec-
tronic monitoring as a condition of pro-
bation; and (3) that an individual's abil-
See ABA MEETING, page 11

September 1988

theTHIRDbranch

T^FRSOMMFT ^^ *^ Update Work Measurement Formulas

In lieht of significant changes in the mulas have not been sienificantlv af-

CIRCUIT JUDGES

Nominations

Guy G. Hurlbutt, 9th Cir., Aug. 11

Appointment

David M. Ebel, 10th Cir., Apr. 20

DISTRICT JUDGES

Nominations

Robert Leon Jordan, E.D. Tenn, July 25
D. Brooks Smith, W.D. Pa., July 28
Jay C. Waldman, E.D. Pa., Aug. 3

Confirmations

Jan E. Dubois, E.D. Pa., July 26
Karl S. Forester, E.D. Ky., July 26
Fern M. Smith, N.D. Cal., July 26
Herbert J. Hutton, E.D. Pa., Aug. 11
Simeon Timothy Lake HI, S.D. Tex.,
Aug. 11

Appointments

George M. Marovich, N.D. 111., April 1
Kimba M. Wood, S.D.N.Y., Apr. 20
David A. Ezra, D. Hav^., May 20
John C. Lifland, D.N.J., May 20
William G. Cambridge, D. Neb., June 6
Richard A. Schell, E.D. Tex., June 6
Karl S. Forester, E.D. Ky., July 27

Senior Status

William R. Collinson, W.D. Mo., Apr. 1

Hiram H. Ward, M.D.N.C, Aug. 19

Resignation

Gabrielle K. McDonald, S.D. Tex., Aug.
14

Nomination Withdrawn

Robert Roberto, Jr., E.D.N.Y., July 26

BANKRUPTCY JUDGES

Appointments

Walter Shapero, E.D. Mich., July 15
David F. Snow, N.D. Ohio, July 25
Lionel H. Silberman, M.D. Fla., July 27
James R. Grube, N.D. Cal., Aug. 12

Elevations

Irvin N. Hoyt, Chief Bankruptcy Judge,
D.S.D.,Julyl

U.S. MAGISTRATES (FULL-TIME)

Resignation

Richard H. Ralston, W.D. Mo., Aug. 1

September 1988

In light of significant changes in the
work performed by court staff, the
Budget Committee of the Judicial Con-
ference has asked the AO's Office of
Planning and Evaluation to give prior-
ity to updating the work measurement
formulas that are used in allocating
positions to the clerks, probation, and
pretrial services offices and in making
budget projections and allocating re-
sources. Accordingly, beginning in
January 1989, that office will initiate a
three-year project to reevaluate the cur-
rent staffing formulas.

Approximately 13,800 positions in
the budget projection for the judiciary
for fiscal 1989 are based on work meas-
urement formulas. Several of the for-

mulas have not been significantly al-
tered since the early 1980s. In the mean-
time, factors such as varying local rules
and management practices, workload
changes, introduction of automation,
and new legislation and Judicial Con-
ference mandates have had an impact
on the processes and levels of effort re-
quired of court personnel. There has
been growing concern within the judici-
ary regarding the present formulas, and
Congress has expressed concern about
their accuracy and credibility.

The three-year formula reevaluation
project will be conducted by AO staff,
court personnel, and contractors, using
advisory committees, questionnaires,
and on-site visits to selected courts. ■

Positions Available

Librarian, Supreme Court of the
United States. The librarian is respon-
sible for the management of the Supreme
Court Library. Responsibilities include
general supervision of 22 employees,
management of a collection of approxi-
mately 250,000 volumes, budgeting, pro-
curement, space planning, and manage-
ment of automated information systems.
Law degree and advanced degree in li-
brary science preferred. A minimum of 6
years of progressively more responsible
law library experience is required. Man-
agement experience, competence with
automated information systems, strong
interpersonal skills, and budgeting expe-
rience are all required. Salary commensu-
rate with qualifications and experience.
Closing date Oct. 14, 1988. Send SF 171 to
Personnel Office, Supreme Court of the
United States, Room 3, Washington, DC
20543. Tel. 202/479-3404.

Clerk of Bankruptcy Court, S.D.N.Y.
Salary $46,679-$72,500. Requires mini-
mum of 10 years' progressively respon-
sible administrative experience, at least
three in a position of substantial manage-
ment responsibility. The active practice of
law may be substituted on a year-for-year
basis for experience. Education may be
substituted as follows: bachelor's degree
equals 3 years; postgraduate degree in
public, business, or judicial administra-

tion equals 1 additional year; law degree
may be considered as qualifying for 2
additional years. Law degree, legal prac-
tice, and training or experience in judicial M
administration are highly desirable. Send ^
3 copies of cover letter and resume by Oct.
7 to Chief Bankruptcy Judge Burton R. Li-
fland, U.S. Custom House, One Bowling
Green, New York, NY 10004-1408.

Chief Deputy Clerk, W.D. Wash. Sal-
ary $39,501 -$54,907. Responsible to the
Clerk for the supervision and manage-
ment of40 court employees. Must possess
bachelor's degree and minimum of six
years' administrative or supervisory ex-
perience in business or a public organiza-
tion, three years of which must have been
progressively responsible, culminating in
a responsible management position, pref-
erably in a federal, state, county, or local
court. Favorable consideration given to
automation experience and to advanced
degree in management, law, public ad-
ministration, or criminal justice. Send
comprehensive resume and cover letter,
thoroughly specifying work experience,
education, skills, abilities, accomplish-
ments, and salary progression to Mrs.
RD. Fields, Chief Deputy Clerk, U.S. Dis-
trict Court, 308 U.S. Courthouse, Seattle,
WA 98104. Applications must be received
by Sept. 23, 1988

Supervisory Deputy Clerk, Court of Ap-

EQUAL OPPORTUNITY EMPLOYERS

BULLETIN OF THE
FEDERAL COURTS

BURGER, from page 1

^n the state courts, since there are only
about 18 Federal Circuit and District
Court positions. We need at least 40.

Did you think the Federal Courts
also needed court administrators?

Definitely. We really need about 40.
Congress authorized 1 1 Circuit Execu-
tives in 197L Initially we tried to get
Congress to provide similar positions
for all metropolitan district courts, but
that was not done. Later Congress gave

in prisons, haven't you?

I've said for 30 years that it makes no
sense to put people in prison and not
train them to do something construc-
tive— and make them better human
beings while there and when they get
out. We need "factories with fences,"
not human warehouses. We need to
train them in some marketable skills.
Also that every prison should have a
grievance procedure along the lines that
labor unions have to resolve prisoner

"I've said for 30 years that it makes no sense to put people in
prison and not train them to do something constructive."

js six such positions, on a temporary
3asis. Every district having more than
?ight or ten judges needs an administra-
:or to keep things moving. The prob-
ems in the large districts like New York,
^s Angeles, Atlanta, or Chicago are
^ery different from those in the smaller
sstricts of Minnesota or Kansas. Court
idministrators deal essentially with
'traffic management" problems.

What were the State-Federal Coun-
:ils that began in 1969?

At the 1969 ABA Annual Meeting I
poke to the Conference of Chief Jus-
ices and asked each State Chief Judge to
neet with the ranking Federal judge in
ach state to create a small, informal
;roup to iron out tensions between the
wo systems — for example coordinat-
ng trial calendars and jury calls. These
ouncils were especially important for
he large states. There are about 35 such
ouncils now, and new methods of co-
iperation have also developed.

Weren't prisons on your 1969 agenda
t the ABA?

Yes, and the Association created a
ommission of lawyers and members of
ther professions — Dr. Karl Menninger
i the famous Menninger Clinics, for
xample. Chief Justice Hughes of New
2rsey was the first Chairman, and they
ame up with some valuable proposals.
J^rt of the value was developing a na-
lonal interest.

You've had a long-standing interest

complaints. When this was done there
was a sharp drop in Federal cases on
minor grievances.

What are some of the other changes
you urged?

I think it would be more beneficial to
talk about the failures I encountered —
what still needs to be done.

We can get to those, but what about

University Law School. I worked on the
faculty of the New York University
Seminar for Appellate Judges from 1957
to 1969 and learned from the State Su-
preme Court Justices someof their prob-
lems.

How did the National Center for
State Courts come about?

In 1971 we convened a Conference on
the Judiciary at Williamsburg and there
proposed that the Center be created
along the lines of the Federal Judicial
Center. The National Center for State
Courts now has a $4-5 million head-
quarters at Williamsburg and has made
enormous contributions to improving
the work of the State Courts. That con-
ference was developed by a team that
included Justice Tom Clark, Justice Paul
Reardon of the Supreme Judicial Court
of Massachusetts and Justice Louis
Burke of the Supreme Court of Califor-
nia.

What else?

I think we made some progress, at
least in some districts, in countering this
idea that any new lawyer can walk out
of a law school with a degree, pass the
state bar exam, and then walk into any

"I would say . . . that — more so now than 20 years ago — judges
and lawyers tend to view the judicial process as a system, and
to realize that we all have an obligation to the consumers of our
legal system and the taxpayers who support it."

the accomplishments?

The National Center for State Courts,
like the Institute for Court Manage-
ment, was long overdue. Now that the
State Justice Institute is in place, it will
also provide assistance to the state
courts.

Why were you concerned with the
state courts?

That is where more than 90 percent of
all litigation arises. The State and Feder-
al Courts are simply different pews in
the same church. I first came to see the
need in 1957 when I was involved in
helping develop an idea conceived by
then Justice Fred Hamley of the Su-
preme Court of Washington (later on
the Ninth Circuit Court of Appeals) and
Russell Niles, Dean of the New York

federal court in the country and be
admitted, very often engaging in on-
the-job training at the expense of their
clients and the system as a whole. The
Judicial Conference created a special
committee chaired by Judge Edward
Devitt made up of trial judges, lawyers
with trial experience, and law teachers
which studied that whole problem.
Because of their work, at least in some of
the courts, new lawyers must show they
have a basic knowledge of the Federal
procedural rules and the rules of evi-
dence. Every Federal court should re-
quire some kind of minimal exami-
nation for admission.
What were other projects?

See BURGER, page 6

September 2988

theTHIRl branch

N OTEWORTHY

ABA Comnuttee role in judicial selec-
tion not subject to Federal Advisory Com-
mittee Act, D.D.C. holds. The District
Court for the District of Columbia has held
that although the ABA Standing Commit-
tee on the Federal Judiciary is an advisory
committee "utilized" by the Department of
Justice within the meaning of the Federal
Advisory Committee Act (FACA), 5 U.S.C.
App. II, that act cannot be applied to the
ABA Committee without violating the
separation of presidential and Congres-
sional powers specified in Article II of the
Constitution. Washington Legal Found, v.
Department of Justice (D.D.C. Aug. 4, 1988).
The plaintiff, Washington Legal Founda-
tion, and plaintiff-intervenor Public Citi-
zen sought a declaratory judgment that the
Department of Justice's use of the 14-mem-
ber ABA committee for evaluations of the
qualifications of judicial nominees violates
FACA. The plaintiffs requested that if the
Department of Justice continued to solicit
advice from the ABA Committee, that the
Department be enjoined to comply with
FACA requirements such as filing an advi-
sory committee charter, providing advance
public notice of committee meetings, open-
ing meetings to the public, assigning a fed-
eral official to attend all meetings, main-
taining and providing public access to the
committee's records, and having a "fairly
balanced" membership in terms of points
of view.

The Department of Justice has relied on
the ABA Committee's investigation and
evaluation of the professional qualifica-
tions of potential nominees for federal
judgeships since 1952, the court noted. It
held that the ABA committee's "histori-
cally lengthy, direct, and significant rela-
tionship with DOJ in the evaluation proc-
ess" supports the conclusion that the
committee falls within Congress's defini-
tion of "advisory committee" as that term
is used in FACA. The court analyzed the
roles in the nomination, confirmation, and
appointment processes as provided for in
Article 11 of the Constitution and held that
"Congress cannot impose FACA in this
case because of the specific limitations on
the role of the legislature as expressed in
Article II." The application of FACA to
the ABA Committee "would potentially
inhibit the President's freedom to investi-
gate, to be informed, to evaluate and to
consult during the nomination process,"

September 1988

the court said. Moreover, the purpose fur-
thered by FACA— public accountability-
is satisfied through the confirmation pro-
ceedings, where the Senate Judiciary
Committee has the opportunity to ques-
tion a representative from the ABA com-
mittee and to request additional informa-
tion, and in which other groups and indi-
viduals have an opportunity to present
views different from those of the ABA
committee. Thus, "no overriding congres-
sional interest has been demonstrated that
outweighs FACA's intrusion on the nomi-
nation power of the President." The court
entered judgment against the plaintiffs and
in favor of the Department of Justice and
dismissed the action.

Seventh Circuit, voting en banc, va-
cates panel decision in Heileman Brewing
case on requiring parties to attend settle-
ment conferences. The decision of the
panel in G. Heileman Brewing Co. v. Joseph
Oat Corp., No. 86-3118 (7th Cir. June 13,
1988), has been vacated by the court voting
en banc and rehearing ordered for Sept. 27.
The panel decision, summarized in Note-
worthy last month (see The Third Branch,
August 1988, at 6), had held that Fed. R.
Civ. P. 16 does not authorize the court to
require represented parties to appear at
settlement conferences.

Fourth Circuit, sitting en banc, affirms
district court decision on Virginia's obli-
gation to provide counsel to stale habeas
petitioners in death penalty cases. The
Fourth Circuit, sitting en banc, has affirmed
a district court decision that held that the
Commonwealth of Virginia, in order to
satisfy its obligation to provide death row
inmates with meaningful access to the
courts, must provide appointment of coun-
sel upon request to such inmates filing
state habeas corpus petitions. Giarratano v.
Murray, 847 F.2d 1118 (4th Cir. 1988). A
Fourth Circuit panel had earlier reversed
the district court decision as to this issue
and held that Virginia met its obligation to
provide meaningful access with its system
of law libraries, institutional attorneys who
act in an advisory capacity in preparing
postconviction petitions, and appointed
counsel in cases requiring an evidentiary
hearing. Giarratano v. Murray, 836 F.2d
1421 (4th Cir. 1988) (discussed in The Third
Branch, March 1988, at 4). The district court
opinion, the Fourth Circuit panel opinion,
and the en banc opinion all held that the
right of meaningful access to court does
not require the appointment of counsel for
federal habeas corpus and certiorari peti-
tions. ■

BURGER, from page 5

I don't believe it helps much to dwCT
on all this. I would say, though, that-
more so now than 20 years ago — judges
and lawyers tend to view the judicial
process as a system, and to realize that
we all have an obligation to the consum-
ers of our legal system and the taxpayers
who support it. And this change in atti-
tude, if it occurred, occurred during a
time of tremendous growth in the Fed-
eral judiciary — growth made necessary
by a steady increase in filings and new
Federal jurisdictions.

When I took office, there were about
300 district judges and we had about
100,000 civil and criminal cases. Now
there are well over 500 judges and over
275,000 cases. There were about 90 cir-
cuit judges and 10,000 appellate cases.
Now we have around 160 circuit judges
and over 35,000 cases. The increase in
filings vastly exceeds the increase in
judgepower. Given this tremendous
growth, I think the system has held
together very well. That is why we had
to create the Magistrate Courts, whicf
are working very well.

What about the Supreme Courfs
caseload?

Now we're getting to my "failure
agenda."
Failure to keep the caseload down?
No — failure to get a mechanism in
place to deal with the expanding
caseload. In my last years on the Court
of Appeals, the Supreme Court issued
around 70 to 90 signed opinions annu-
ally. By the early 1970's it grew to about
120. It is now around 150. The same is
true for cases filed: 1,200 or 1,300 in the
early 1950's to over 3,000 by the late
1960's and now it is around 5,000 each
year. In other words, a steady increase
in the work but no increase in the num-
ber of Justices, and I don't think an in-
crease in the number of Justices would
help.

How long has this subject been dis-
cussed?

More than 40 years ago Professors
Felix Frankfurter, Henry Hart and othr
crs raised this issue, stating that iC'.
signed opinions a year was the maxi-

See BURGER, page 7

JRGER, from page 6

Mm the Supreme Court could handle
ft was to maintain proper quality.
So what was the answer you saw in
69?

I didn't have the answer, but I knew it
eded study. We created the so-called
eund Committee in 1971 under the
spices of the Federal Judicial Center,
lich was just getting under way then,
lat committee, with Paul Freund,
exander Bickel, and others, repre-
nted a wealth of Supreme Court expe-
nce. They recommended creation of
intermediate court between the
lurt of App>eals and the Supreme
•urt.'

rhat recommendation ran into a lot
opposition. Were you surprised?
X was what I expected. It takes time
■ any development of this kind; the
;al mind tends to cling to old ideas
ecause we've always done it that
ly." For that matter, I certainly wasn't
nvinced that this intermediate court
IS the answer. But something had to
done to start towards an answer, and
S committee report was only a begin-

n fact, the next step was a proposal in
e of my early State of Justice Reports
the ABA that Congress create a com-
ssion to study what to do about the
pellate problem. This commission^ —
nator Roman Hruska chaired it and
Dfessor Leo Levin served as Executive
rector — heard testimony around the
jntry and put in several years of
idy and came to about the same con-
ision as the Freund Committee.
:t wasn't exactly the same, was it?
^Jo it wasn't. But it did agree with the
jund Committee on the case over-
id. The Hruska proposal put a lot
)re emphasis on the problem of con-
:ts among the circuits. It is wholly
ippropriate for a particular question
be decided one way in one circuit and
other way in a different circuit, or at
st to let that difference stand for very
»g. Some conflict is tolerable for a
ule, but not very long if we are to have
easonably uniform quality of justice
this country. One objection was the
5urd proposition that the increase in

caseload is the Court's fault for accept-
ing too many cases, instead of leaving
them to the Courts of Appeals. If a Court
of Appeals openly disregards holdings
of the Supreme Court, or if a conflict
arises, the only proper action is review
and reversal. Countless new statutes
over the past 20 to 30 years created new
Federal jurisdiction.

Another independent committee,
studying both state and federal ap-
pellate procedure, supported the find-
ings of the Freund and Hruska Reports.
That committee was chaired by Profes-
sor Maurice Rosenberg of Columbia
University, a former Assistant Attorney
General.

Didn't you present an alternative
proposal to a permanent intermediate
court?

Yes. About three or four years ago, I
suggested that in place of creating a
permanent court, we try a temporary
experiment for three to five years. The
Supreme Court would create a panel by
selecting one judge from each circuit
and from that group draw a panel of
nine who would come to Washington —
or Chicago — perhaps twice a year to
hear cases. The Supreme Court would
refer statutory interpretation cases —
not constitutional questions — to the
panel. If it didn't work out, we could say
we tried the experiment and drop it.

Haven't some objected to an in-
termediate court because it would
place too much of a burden on the
Courts of Appeals?

That point has been raised, but it is
without any substance. Under this ex-
periment a panel of nine circuit judges
would sit perhaps twice a year for a
week each time. Since these conflicts
arise at the circuit level, the circuit court
judges should be given the chance to
rectify the problems as they do with en
banc hearings — and my preference
would be to draw primarily on Senior
Circuit Judges. This panel would ad-
dress only issues of statutory construc-
tion— not constitutional cases. A minor-
ity of Federal judges opposed this idea
from the start and Congress never really
got to the heart of the problem.

Incidentally, one of the principal

BULLETIN OF THE /a
FEDERAL COURTS

problems of statutory interpretation in
the last 25 or 30 years has been the
cloudy language of many statutes.
Careful statutory draftsmanship is al-
most a lost art, with staffers and lobby-
ists getting so involved in the drafting
process.

How much relief would this in-
termediate court give the Supreme
Court?

Possibly up to one third of its load.

Has the experimental proposal gone
anywhere?

Not very far. Apathy and inertia seem
to surround proposals for improving
the administration of justice unless
there's a driving force behind them. The
legal profession is just not very inter-
ested in the Court's caseload.

Is the Supreme Court functioning as
efficiently as it should?

I have difficulty thinking how the
Court could work more efficiently than
it has for the 35 years that I've watched
it closely. In 1970 the Court reduced the
oral argument time from one hour to 30
minutes so we heard 12 cases each week
instead of eight; it has reduced the time
devoted to reading lengthy announce-
ments of opinions from several hours on
a given day to 10 or 15 minutes; and the

See BURGER, page 8

CALENDAR

September 7-11 Workshop for Bank-
ruptcy Clerks

September 8-11 Second Circuit Judicial
Conference

September 12-16 Orientation Seminar
for New Probation/Pretrial Officers

September 14-15 Judicial Conference of
the U.S.

September 14-16 Workshop for Opera-
tions Managers

September 18-20 Third Circuit Judicial
Conference

September 23-24 Advisory Committee
on Bankruptcy Rules

September 25-26 Claims Court Judicial
Conference

September 26-30 Orientation Seminar
for New Probation/Pretrial Officers

September 26-28 First Circuit Judicial
Conference

September 1988

theTHIRDbranch

BURGER, from page 7
Court has eliminated the requirement
that every person admitted to the Bar be
present in the Courtroom. Those steps
saved a large amount of judge Hme.

Would it be an improvement to have
a true Supreme Court Bar — that is, a
group of specialists who would argue
most of the cases before the Court?

I am not sure. There is no "Supreme
Court Bar" as the term is understood in
the profession, as there probably was a

Chief Justice could do it now with re-
spect to a Federal judge eligible for
senior judge status but he couldn't re-
ally give that judge the title of "Tenth
Justice for Administration." In fact in
August 1969 1 asked the late Third Cir-
cuit Judge William Hastie, then a senior
judge, to move to Washington to do
something along those lines but he pre-
ferred to stay with judicial work. In
addition to Judge Hastie, 30 years ago
Judge Albert Maris would have

"There is too much 'judge shopping' in this country in both
the Federal and State courts. This is particularly true in
criminal cases "

century ago or even 50 years ago. One
exception is the professional career staff
of the Solicitor General's office — they
are consistently very good. The advo-
cacy in most court cases is very good,
and I believe it improved during my 17-
year tenure. We sponsored a helpful
program to assist state advocates with
brief work and a practice or "moot" run
of a case supervised by the Conference
of State Governments.

At some point you advanced the idea
of a Tenth Justice for Administration.
Where does that stand?

That was another long-range pro-
posal to stir up some debate. Professor
Dan Meador at the University of Vir-
ginia later had a seminar on this and the
result was a recommendation for a
"Chancellor" to do what I had in mind
for the Tenth Justice for Administration.
That gave substantial support for the
basic idea but the title of "Chancellor"
could cloud the function. It is an obso-
lete title fitting for the Smithsonian or an
ancient university, but not in the courts
of our day.

How would the Tenth Justice be se-
lected?

1 would have the selection made by
the Chief Jushce. He would choose from
among the Article 111 Federal Judges
then in office to serve an indefinite term
and then to return to his or her status as
a Circuit or District judge. This would
really be an assignment process. The

Sepicmher'iSSS

worked, and more recently Judge Ed-
ward Tamm. Tom Clark in retirement
would have fit. Of course there are oth-
ers.

What would be the duties of this
Tenth Justice and why would that title
help?

The title and status would be very
important in carrying out the function.
He or she would carry a good deal of the
work of dealing with the Judicial Con-
ference of the United States. Perhaps
even presiding as a sort of "vice chair-
man." This would also be true with re-
spect to the Federal Judicial Center,
whose Board of Directors is chaired by
the Chief Justice. The Tenth Justice
would closely follow the work of the
Judicial Conference Committees, act as
Congressional liaison, and oversee the
programs of the Federal Judicial Center.
It would be an almost full-time job to
attend even the meetings of the major
Judicial Conference Committees.

Aren't these duties performed by the
Administrative Assistant to the Chief
Justice?

In part, yes, but not to the extent the
Tenth Justice would do it. The prestige
of being an Article III judge and the title
of Justice would make the situation
quite different. Moreover, an experi-
enced Article III judge selected for this
position would bring an added dimen-
sion of background and knowledge of
how the courts work. The function

would be a matter of evolution.

What if a Chief Justice were to f^
that this concept was not working^

Then he could drop the idea. This \\
another good example of the need to tn
out new ideas.

Do other countries have such a po
sition?

Yes, in a sense. In England, our near
est systemic ancestor, these people d(
what the Chief Justice of the Unitec
States is called upon to do by Congress
The Lord Chancellor does some of wha
our Chief Justice does; the Lord Chie
Justice does some presiding over th
Court of Appeals for criminal cases. Thi
Master of the Rolls presides over th
Court of Appeals, reviewing civil an(
administrative law cases. In Franc
there are three Courts and three Chief
doing what the United States Chief Jui
tice is assigned to do. It is simply unreal
istic to ask our Chief Justice to functio
under a system set down in 1789 in th
Judiciary Act, when there were only 1
Federal judges and six Supreme Coui
Justices. And many state courts hava
judge assigned full-time to adminis*
tion. New York is but one example.

What are some of the other thing
you wish you could have seen to con
pletion?

I didn't have much success cor
vincing the district courts to establis
case assignment systems that took a(
count of the complexity and difficulty c
the case as well as the background ani
experience of the judge. That wouli
apply to only a small percentage of th
cases, but it is crucial to any rationa
judicial system. If a multiple defendan
criminal case comes along, or a comple
antitrust case, the Chief Judge or th
assigning commi ttee of the court shouli
not let that go by a random draw to
brand new judge who may have limite(
litigation experience and perhaps non
in antitrust.

Has that been tried in America)
courts?

Very little and not enough. A probler
has been that even when the system ha
proven its value, when a new Civ
judge comes along he or she may r.
follow through. In one instance a nev
See BURGER, page 1

BULLETIN OF THE
FEDERAL COURTS

Lidicial Conference Standing Committee
Pleases Proposed Rules Changes

The Standing Committee on Rules of
■actice and Procedure of the Judicial
inference of the United States, chaired
' Judge Joseph F. Weis, Jr. (3d Cir. ), has
leased proposed federal rules amend-
cnts, one proposed new rule, and one
opHDsed new form. The changes origi-
itcd in the Judicial Conference Advi-
ry Committees on the Federal Rules of
ppellate Procedure, the Federal Rules
Civil Procedure, the Federal Rules of
•iminal Procedure, and the Federal
lies of Bankruptcy Procedure. The
anges are being circulated to the
nch and bar and to the public gener-
y for comment. The Standing Com-
ittee on Rules of Practice and Proce-
ire has not approved these proposals,
ir have they been submitted to the
dicial Conference or the Supreme
)urt. Comments and suggestions on
e proposals are requested as soon as
•ssible, and not later than Dec. 31,
j88. No hearings are planned at this
he by the Advisory Committees.
Proposed changes include these:

• Appellate Rules. Repeal of current
le 6 and replacement with a rule rec-
Tiizing that parties have a right to
peal; a change in rule 26(a)'s method

counting time when intervening
?ekends and legal holidays are in-
Ived; and new rule 26.1, requiring a
rty to disclose corporate affiliates so
udge can ascertain whether he or she
s any interests in any of the party's
ated entities that would disqualify
? judge from hearing the appeal.

• Criminal Rules. Rule 11 would be
lended in light of guideline sentenc-
5, particularly with respect to notice

guidelines to defendants. Rule 32
)uld be amended to adjust the rule to
i requirements of guideline sentenc-
;, esp>ecially with respect to defense
:ess to presentence reports, and rule
[c)(E) would be abrogated. The rec-
imended abrogation of subdivision
I reflects the following facts under
ideline sentencing: that there will be
ies in which the defendant has a need
■ the presentence report during the
eparation of or response to an appeal;

that district courts may find it desirable
to adopt portions of the presentence
report when making findings of fact
under the guidelines; and that the Su-
preme Court's decision in U.S. v. Julian,
108 S. Ct. 1606 (1988), suggests that de-
fendants will routinely be able to secure
their presentence reports through FOl A
suits. The proposed amendment is in-
tended to prevent unnecessary FOIA
litigation. Rule 41 would be amended to
facilitate return of seized property
while protecting legitimate law en-
forcement interests in such property,
and to eliminate confusing language
from the rule. Rule 45 presently pro-
vides that intervening weekends and
legal holidays shall not be counted in
computing time when the time period
prescribed or allowed is less than 11
days. The proposed change in rule 45
would exclude weekends and legal
holidays when the time prescribed for
action is less than eight days.

• Civil Rules and Bankruptcy Rules. The
time calculation under Fed. R. Civ. P. 6
and Fed. R. Bankr. P. 9006(a) concerning
the exclusion of intervening weekends
and legal holidays would be amended
from 11 to 8 days to conform with the
proposed changes to Fed. R. App. P.
26(a) and Fed. R. Crim. P. 45(a).

• Evidence Rules. Rule 609(a) would be

FJC Releases Publication
on Patent Law

Patent Law and Practice, by Professor
Herbert Schwartz of the University of
Pennsylvania School of Law, the nnost
recent publication in the Center's Edu-
cation and Training Series, is now
available. A precis of American patent
law, the book traces the steps followed
in obtaining a patent, explains the con-
ditions required for a patent, and dis-
cusses the defenses against and reme-
dies for patent infringement. It is de-
signed to provide an overview of this
specialized field in the law. The author
has included an annotated bibliogra-
phy of sources on the topic.

Copies of the publication are avail-
able from Information Services, 1520 H
Street, N.W., Washington, DC 20005.
Please enclose a self-addressed mail-
ing label, preferably franked (6 oz.), but
do not send an envelope.

amended to remove from the rule the
limitation that evidence of a witness's
conviction of a crime may only be elic-
ited during cross-examination, and
would resolve an ambiguity as to the re-
lationship of rules 609 and 403 with
respect to impeachment of witnesses
other than the criminal defendant.

Address communications concerning
the proposals to: Committee on Rules of
Practice and Procedure, Administrative
Office of the U. S. Courts, Washington,
DC 20544. ■

Supreme Court Studies Automated Opinion Access

The Supreme Court has taken the
first step toward making its opinions
available via computer by inviting legal
publishers, legal research database pro-
viders, and news wires to submit pre-
liminary proposals for how they would
handle electronic dissemination of the
Court's decisions. The invitation is
based on a study of possible problems
and alternative approaches conducted
over the last 18 months by a group of
Court staff members headed by James
R. Donovan, the Court's Director of
Data Systems.

The Court's action was in response to
numerous inquiries from legal organi-
zations, news agencies, and others seek-

ing electronic access to decisions im-
mediately after release by the Court.

The invitation was sent to organiza-
tions that have shown an interest in dis-
tributing Supreme Court opinions, but
the opportunity to participate is open to
any organization with the qualifications
to fulfill the Court's considerations and
objectives. To explain the project and to
answer questions from interested par-
ties, the Court will conduct a meeting
on Sept. 29, 1988. Attendance will be re-
stricted due to limited seating. For in-
formation, contact James R. Donovan,
Director of Data Systems, Supreme
Court of the United States, Washington,
D.C. 20543. ■

September 1988

10 .

theTHIRDbranch

BURGER, from page 8

Chief Judge declined to continue the
assignment method of his predecessor,
maintaining that "every judge is en-
titled to an equal chance to a front page
case." My response was that this was a
totally new principle of judicial admini-
stration.

This assignment method is a common
practice in some systems. The nearest
parallel we have are the British courts.
The Chief Judge or presiding judge
takes the background and experience of
a judge into account in assigning special
cases. And, of course, they have special-
ized courts.

How are cases categorized?

Cases are assigned specific categories,
such as admiralty, family and divorce,
equity court, and criminal. English
judges are generalists as a good judge
should be but they are also specially
skilled in certain areas.

You see a lot in the British system
worth emulating, don't you?

I've been accused of being an An-
glophile, even though I've said re-
peatedly that we shouldn't try to dupli-
cate the British system here. We
couldn't even if we wanted to. But 1 can't
see any great harm in studying what
they do well. In some of the Anglo-
American exchanges that have been
going on for 25 years, the members of
the American team were astonished to
see cases tried in one or two days that
regularly take one or two weeks — or
more — to try in the United States. In
civil cases in England — except in a few
categories such as slander and libel —
juries were abolished a half century ago.
A British civil case may be finished be-
fore we would pick a jury. In some
American courts, the judges tend to let
the lawyers run the show. Some lawyers
like that, but if s dead wrong. Jury selec-
tion that takes weeks — sometimes it
takes even more — is a perversion of
justice. The Bar and Bench over there are
appalled to see the time wasted on jury
selection here.

What other judicial "failures" have
you addressed?

TTiere is too much "judge shopping"
in this country in both the Federal and
State courts. This is particularly true in

September 1988

criminal cases and perhaps is most ob-
jectionable in connection with guilty
pleas. Assignment of judges to take
guilty pleas should be done so that there
is a genuine random assignment to pre-
vent a lawyer from either rushing or
delaying his case in order to get a more
"lenient" judge.

You certainly weren't silent about
the compensation of judges.

Silence would have been the height of
irresponsibility. My regret is that we
weren't able to break this linkage be-
tween Congressional salaries and
judges' compensation. That linkage is
completely without rational founda-
tion. Federal judges understand that
they're not going to have the same earn-
ing power as in private practice, but
that's no excuse for letting their earning
power — in real dollars — decline each
year. According to an analysis of the top
thousand corporations in Fortune
magazine, the average salary of chief
corporate executives is $590,000. The
presidents of the World Bank and the
International Bank, as well as the Secre-
tary of the Smithsonian Institution, are
compensated substantially more than
Supreme Court Justices, who receive
slightly over $100,000 a year. The day
has come when men and women who
are truly capable of serving as Federal
judges just won't do it, and once we
have lost that, I'm afraid we'll never get
it back. More Federal judges have re-
signed on economic grounds in the past
20 years than in the previous 180 years.
The Federal judges as a whole make a
great sacrifice to serve.

Throughout these developments be-
ginning in 1969 there seems to be a pat-
tern of working with the ABA, the state
courts, and others, even in situations
where you have initiated the program.
Do you care to comment on that?

A one-man show does not get results.
Most good things are the result of team-
work, and a combination of both ideas
and execution. If I learned anything
under President Eisenhower, it is that a
person can accomplish a great deal
more if other people get the credit. The
Conference on the Judiciary at Wil-
liamsburg, for example, was something
1 had discussed with Tom Clark and a

great many others. Clark was a major
part of this planning. Most of these pri
grams were matters that had been dis
cussed with various members of the
Judiciary in order to develop a consen-
sus. When it was necessary, I had no
hesitation in communicating with who-
ever occupied the Office of Attorney
General, or the Chairman of the House
or Senate Judiciary Committee, or the
Chairman of the Subcommittee on
Appropriations.

Anything else?

One more thing comes to mind — the
matterofa Federal Judiciary Buildingso
that the Administrative Office and the
Judicial Center wouldn't be scattered all
over town, as they are now. The Su-
preme Court needs some extra space as
well. This has been one of my objectives
for 15 years, and if a Judiciary Building
had been built in 1970 or 1972, the rent
used for the Center and the AO could
have paid for it — and more. But thaf sin
the past. Things seem on track now for
the building in Washington by Union
Station. Construction will begin on tl^
building within a year. \

Are you really out of active service?

In the judicial sense I am, but the Bi-
centennial of the Constitution is every-
thing I expected it to be in the way of
work and more. There is a great deal of
satisfaction from helping to tell the great
story of our Constitution to the country
and to the world. And there's much
more to be done. We are now focusing
on primary schools, high schools, col-
leges and universities.

1/ The Study Group on the Caseload of the Su-
preme Court: Professor Paul A. Freund (Chair-
man), Professor Alexander M. Bickel, Peter D.
Ehrenhaft, Dean Russell D. Niles, Bernard G.
Segal, Robert L. Stern, and Professor Charles Alar
Wright.

2/ Commission on Revision of the Federal Courl
Appellate System: Senator Roman L. Hruska,
Judge J. Edward Lumbard, Senator Quentin N
Burdick, Senator Hiram L. Fong, Senator John L
McQellan, Honorable Emanuel Celler, Dear
Roger C. Cramton, Francis R. Kirkham, Judg(
Alfred T. Sulmonetti, Congressman Jack BroQJf
Congressman Walter Flowers, Congressnf
Edward Hutchinson, Congressman Charles E
Wiggins, Judge Roger Robb, Bernard G. Segal
and Professor Herbert Wechsler. |

BULLETIN OF THE
FEDERAL COURTS

5A, from page 3

* to pay for the use of an electronic
onitoring device not be considered in
'termining whether to require the use
such a device. The resolution was ap-
oved.

A second resolution asked for ap-
oval of "Guidelines Governing Resti-
tion to Victims of Criminal Conduct."
lese Guidelines were written to pro-
ie assistance to practitioners in the
minal law area, but should be of inter-
t to all judges, prosecutors, and de-
ise lawyers when they are consider-
5 either court orders or recommenda-
ns for court orders aimed at assuring
It a victim is fairly compensated. This
solution was approved.
A third resolution, also approved,
ced that the ABA approve additions
Chapter 7 of the Criminal Justice
?ntal Health Standards, entitled Com-
ence and Confessions. The additions
ate to the admissibility and volun-
iness of statements by mentally ill or
arded persons. This final product is
\ result of over three years' study,
er the involvement of a special inter-
ciplinary task force appointed in
15, consultation with at least 24 or-
lizations, and final recommenda-
ns to the Criminal Justice Section by a
?cial seven-member task force.
The drafters point out that many
tes have still not resolved the com-
X procedural issues arising since the
). Supreme Court's decision in Colo-
ov. Connellyin 1986. These additions,
refore, are offered as an assistance
•ticularly to the states.
furisdiction in child custody dis-
tes. The House of Delegates ap-
>ved a resolution asking Congress to
>s legislation clarifying that the fed-
1 district courts do have power to
olve the issue of conflicting state
ims to jurisdiction over child custody
putes. In 1980 the Parental Kidnap-
ig Prevention Act was passed to
)id jurisdictional competition and
iflict between state courts. Since then
,r circuits have held that the federal
.rts have jurisdiction in such cases,
e circuit, however, has held that the
did not create a cause of action in a
eral court. Last January the Supreme

Justice Powell Speaks on Death Penalty
at ABA Annual Meeting

Retired Justice Lewis F. Powell ad-
dressed the Criminal Justice Section of the
ABA last month at the annual meeting in
Toronto. Speaking on the habeas corpus
process in capital cases, he called upon
Congress and state legislators to review
existing procedures with a view to making
improvements. Years of delay and repeti-
tive appeals all the way to the Supreme
Court, often on the eve of the execution
date, the Justice said, are almost routine,
place heavy burdens on the courts, and
often prevent "mature and thoughtful
consideration." He quoted Chief Justice
Rehnquist, who has said that the system is
"disjointed and chaotic."

Justice Powell summarized his com-
ments by saying "[T]here are no easy an-

swers to the problems of our murder rate
. . . but I do not think we should accept
these problems as inevitable .... I adhere
to the view that the death penalty lawfully
may be imposed — My concerns relate to
the way the system malfunctions, and to
the shocking murder rate that prevails in
our country . . . [which] appears to be the
highest among the democracies."

Chief Justice Rehnquist has appointed
Justice Powell Chairman of a newly
formed Judicial Conference Special Com-
mittee on Habeas Corpus Review of Capi-
tal Sentences. The other committee mem-
bers are Chief Judges Charles Clark (5th
Cir.), Paul H. Roney (llth Cir.), and Wm.
Terrell Hodges (M.D. Ra.), and Acting
Chief Judge Barefoot Sanders (N.D. Tex.).

Court held that the Kidnapping Act
does not provide an implied cause of
action in federal court. However, the
opinion contained language to the effect
that "Congress may choose to revisit the
issue."

Sabbatical leave. Although sabbati-
cal leave for judges is a concept adopted
by other countries, it is in use in the U.S.
in only one state, Oregon. The House of

Delegates has now endorsed a resolu-
tion that recommends adoption of legis-
lation to provide sabbaticals forjudges,
either for six months at full salary or for
one year at half salary.

All reports and resolutions submit-
ted for the 1988 annual meeting are
available at the Center. For this or other
information write Alice O'Donnell at
the Center or call (FTS) 633-6359. ■

TIME STUDY, from page 1

of the country represented in each of the
five waves, the study should largely
avoid the misleading results that might
arise from seasonal and regional differ-
ences in bankruptcy filing rates or other
aspects of bankruptcy court activity.

This time study follows the proce-
dure the Center has used in earlier stud-
ies of caseload in appellate, district, and
bankruptcy courts. The key feature of
the methodology is the relating of time
spent on specified cases to the types and
ages of the cases. When all the informa-
tion has been collected, the analysis will
show how much time is spent on each
case type during each period in the life
of the case.

By summing up the amounts of time
spent at each time period for each case
type, a case weight for each case type
can be specified. Case weights can be

calculated for any case type that can be
rouhnely identified on the basis of infor-
mation supplied by the courts to the
Administrative Office. An earlier time
study of the bankruptcy courts pro-
vided case weights for more than a
dozen case types, ranging from Chapter
7 cases with no assets to large Chapter 1 1
cases. Weights for adversary proceed-
ings can be calculated and reported
separately or included as part of the
weights of the case types out of which
the proceedings arise.

When case weights have been estab-
lished for each case type, weighted
caseloads can be calculated for each
court based on the volume and case-
type mix of the court's filings. These
weighted caseloads can guide the courts
and the Judicial Conference in their
consideration of requests for new bank-
ruptcy judgeships. ■

September 1988

THE THIRDbranch

LEGISLATION, from page 2
S. 2601 would extend the sliding scale in
current law so that eligibility for senior
status would begin at age 60 with 20
years of service as in H.R. 3726, but
S. 2601 would reduce the years of serv-
ice one year for each year beyond 60, so
that a judge could take senior status
with 19 years of service at age 61, 18
years of service at age 62, and so forth.
Under H.R. 3726 the years of service re-
quirement to take senior status would
remain 20 years from age 60 to 65, when
it would drop to 15.

The Subcommittee also heard testi-
mony on H.R. 1929 and H.R. 3227, bills
that would establish a Federal Courts
Shidy Commission. H.R. 1929 contains
a sunset provision that would limit the
Commission's life to 10 years; H.R. 3227
contains a two-year sunset provision.
The Judicial Conference has urged fa-
vorable consideration of a bill to create a
temporary commission to study the
judiciary. Judge J. Clifford Wallace (9th

Cir.) provided a written statement to the
Subcommittee detailing the history of
the idea for such a study commission,
and endorsing the concept contained in
H.R. 1929 of a commission that would
have two years to study problems and
develop long-range goals and eight
years to make annual recommendations
to Congress and the President.

The Subcommittee also considered
H.R. 4309, which would make surviving
spouses of judicial officials who died
before Oct. 1 , 1 986, eligible for increased
annuities that became effective as of that
date (see The Third Branch, May 1988, at
3).

• The House of Representatives voted
to impeach Judge Alcee L. Hastings
(S.D. Fla.). The House Judiciasy Com-
mittee had approved an impeachment
resolution following hearings. The
House also appointed six of its members
as managers to appear before the Senate
to try the impeachment.

• The House Judiciary Committee

ordered reported the Court Reform ar -
Access to Justice Act of 1988, H.R. As(
with amendments. TTie bill, originali
introduced as H.R. 3152, contains af
number of provisions supported by the
Judicial Conference (see The Third
Branch,]une19SS,a\.2).

• The Senate Judiciary Committes
ordered reported, with amendments
S. 1867, to amend the Court Interpreter
Act of 1978, 28 U.S.C. § 1827 (see Th
Third Branch, Jan. 1988, at 1).

• The Senate Judiciary Committee'
Subcommittee on Courts and Adminis
trative Practice approved for full Corr,
mittee consideration, with an amend
ment, S. 1961, the Federal Debt CoUec
tion Act (see The Third Branch, Februar
1988, at 4).

• Rep. Robert Kastenmeier (D-Wis
introduced H.R. 5161, a bill to provid
Claims Court judges pay equality wit
judges of the U.S. Tax Court, and t
provide retirement and survivors' at
nuities for Claims Court judges.

(

BULLETIN OF THE FEDERAL COURTS

theTHIRDbranch

First

Class

Mail

Vol. 20 No. 9 September 1988

The Federal Judicial Center

1520 H Street, N.W.
Washington, DC 20005

Postage and

fees paid

United States

Courts

Official Business

Df:AN

'J N j: V ir: R ■■:. i r y o t-- j. i.. i i n i'i j •-,

CDl.LErC-if. DF- LAW

::'0 4 t: l-i-NNSYLVAMJ A AVF

CHAMPAIGN 11. 61820

U.S. GOVERNMENT PRINTING OFHCE 1988-201-733-80007

.lllMl.nMnnu.il.

BULLETIN OF THE FEDERAL COURTS

LAW L1BEAS.Y

OCT 17 1988

ROVTj DOd

FEDERAL DEPOSITORY

BRANCH

VOLUME 20
NUMBER 10
OCTOBER 1988

dicial Conference Asks for More Judgeships,
pproves New Marshals Service Security Plan

rhe Judicial Conference of the
ited States, meeting in Washington
jcptember, asked Congress to create
V judgeships and approved three
asures relating to the use of video
lipment for certain limited purposes
ited to court business,
rhe Conference voted to ask Con-
ss to create 14 new court of appeals
geships and 37 permanent and 22
\porary district court judgeships.
is request supersedes the
iference's 1986 request to create 40
manent and 16 temporary district
rt judgeships and 13 permanent
rt of appeals judgeships (see The

Third Branch, November 1986, at 1, and
June 1987, at 5). If diversity jurisdic-
tion were to be eliminated, the Confer-
ence request would be reduced.

The Conference also acted on the
following measures:

• Approved a proposal of the U.S.
Marshals Service to improve judicial
security by installing video equipment
in certain courtrooms. The equipment
will be installed in approximately 10
or 12 courtrooms in order to monitor
the proceedings in high-risk trials,
with the approval of the presiding

See JUDICIAL CONFERENCE, page 8

mnihus Court Reform Bill Supported hy JCUS,
milar Bill Under Senate Consideration

H.R. 4807, an omnibus court reform
. introduced by Rep. Robert Kasten-
ier, was passed by the House. The
, a revised version of an earlier bill,
Atains numerous provisions re-
Dsted by the Judicial Conference of
United States (see The Third Branch,

is. Magistrate Robert B. Collings (D.
2SS.) speaks on civil litigation at the FJC
ninarfor newly appointed magistrates in
ishington, D.C. See page 4 inside.

October 1987, at 1). Before the vote on
the bill. Rep. Kastenmeier read a letter
from Chief Justice Rehnquist express-
ing both the Judicial Conference's and
his personal support for H.R. 4807.

Among the bill's provisions are
titles that would

• amend the rulemaking process;

• expressly authorize court-an-
nexed arbitration in N.D. Cal., D.
Conn., M.D. Fla., W.D. Mich., W.D.
Mo., D.N.J., E.D.N.Y., S.D.N.Y.,
M.D.N.C., W.D. Okla., E.D. Pa., S.D.
Tex., W.D. Tex, and in 10 additional
judicial districts that will be approved
by the Judicial Conference. The title
also contains limitations on the type of
actions that may not be referred to
arbitration without consent of the par-
ties; authorization of the taxation of
arbitrator fees and attorneys' fees as
costs to the party demanding a trial de
novo, subject to certain conditions;
standards for the certification of arbi-
trators; and a requirement that the
Federal Judicial Center conduct an
impact analysis of the court-annexed

See LEGISLATION, page 7

Chief Justice Addresses
Australian Bar on
Evolution of Legal
Profession in the U.S.

Chief Justice Rehnquist, in a speech
to the Australian Bar Association, dis-
cussed changes that have taken place
in the legal profession during the last
35 years, stating that the "tremendous
increase in terms of real dollars in the
cost of litigation in our country during
that period of time, while perhaps a
boon to the profession in the short
run, is not a positive development."
He suggested that simpler, less time-
consuming procedures than the full-
scale jury trial, "while they may lose
something in the pursuit of a totally
accurate reconstruction of events, may
more than make up for this lack by the
reduction of costs and delays."

The last 35 years have seen the
evolution of the practice of law from a
profession to a business, the Chief
Justice remarked. When he began to
practice law, there were slightly over
200,000 lawyers practicing in the
United States, whereas now there are
about 700,000, he observed. Such
growth has been "out of all proportion
to the growth of population in our
country." Developments have re-
sulted in a profession "far more open
to women and minorities" than it for-
merly was, that has become more
See CHIEF JUSTICE, page 3

Inside . . .

Telephone Access to Court
Electronic Records Tested
InD.D.C

...2

FJC Releases Report

On Local Court Rules

...2

JCUS Advisory Committees on
Rules to Meet in November

...5

theTHIRD branch

New Method for Computerized Access to Case
Information Via Telephone Tested in D.D.C.

A method for permitting the pubhc to
have remote access to computerized
case docket information via telephone is
being tested in the U.S. District Court for
the District of Columbia. Installation of
the public dial-in access package, v^^hich
was developed by Federal Judicial
Center staff, recently began. During the
initial phase of testing. Center staff and
the Clerk of Court invited a limited
number of law^ firms and other inter-
ested parties to use this service; use by
larger numbers of persons will follow.

The system, called PACER (Public
Access to Court Electronic Records),
permits users to look up a case by either
litigant name or case number and re-
trieve the full electronic docket for the
case. Users must have either a 1200 or

able to access electronic docket informa-
tion by visiting the court in person to use
one of two public terminals at the court.

"This project has tremendous prom-
ise for improving the way that attorneys
have access to court data. I see
enormous potential benef i ts not only for
attorneys but for the court," said James
F. Davey, Clerk of Court of the U.S.
District Court for the District of Colum-
bia.

The PACER system will be imple-
mented in the D.C. court in two phases.
During Phase I, access will be afforded
during normal business hours and par-
ticipation will be limited to a small
group of users; analysts from the FJC
will be in contact with each user to get
immediate feedback, answer any ques-

"This project has tremendous promise for improving the way that

attorneys have access to court data." James F. Davey, Clerk of Court, D.D.C.

2400 baud modem and a terminal or
personal computer (or other computer).
They may save the electronic dockets on
their own computers or print them out
in their own offices.

Users can retrieve the entire elec-
tronic docket of a typical case in less
than 30 seconds. They can also find out
in less than a minute if anything has
happened to a case and can research
case involvements by name — for ex-
ample, locating all cases in which ABC
Manufacturing is a litigant. Before in-
stallation of the system, users were only

BULLETIN OF THE FEDERAL COURTS

THEir:Lii\. BRANCH

Published monthly by the Administrative
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-edilors
Alice L. O'Donncll, Director, Division of
Inter-Judicial Affairs and Information Serv-
ices, Federal Judicial Center. Peter G.
McCabc, Assistant Director, Program Man-
agement, Administrative Office of the U.S.
Courts.

October 1988

tions, and watch for and correct techni-
cal problems with the software. During
Phase 2, the system will be opened to a
larger group of users and will be avail-
able almost 24 hours a day. The court
provides users with documentation and
an ID/password, and use of the system
is presently offered free of charge.

PACER includes an "idle time" limit
that causes the system to "complain" if
the user pauses for too long without
doing anything. During the initial phase
of testing, PACER also limits sessions to
10 minutes, in fairness to other users of
the system's single line. At the D.C.
court, civil cases opened before 1986 are
generally not available wi th this service;
criminal case dockets will be added
early next year.

PACER will be tested on a pilot basis
in additional district, bankruptcy, and
circuit courts later this year or next year.
The FJC will review user comments and
suggestions in refining the system for
possible nationwide distribution. Fur-
ther information about PACER is avail-
able from John Hillenbrand or Mike
Greenwood of the Center's Information
and Systems Development Division, tel.
202/633-6400.

Center Releases Publicatioli

on Revision of Local

Court Rules

The Center has announced the
publication of A Practical Guide to Revi-
sion of Local Court Rules by Jeanne
Johnson Bowden. The paper was writ-
ten to facilitate the rules revision proc-
ess in other trial courts by sharing the
experiences that the Northern District
of Georgia had in revising its rules.
That district undertook the total revi-
sion of its local court rules in January
1983. The project, led by the court's
rules committee, lasted two years and
involved all judges and magistrates on
the court, the clerk of court, his dep
uty clerks, and his assistants. The
rules were reviewed by court person-
nel, government and private attor-
neys, and the Administrative Office.

The paper is intended to be a
"how-to-do-it" presentation. It does
not address the philosophical consid-
erations that influence the content of
specific rules in the nation's trial
courts. Separate sections are devotifc
to such topics as the decision to reviW
rules, organizing the rules committee,
meetings, organization of court rules,
drafting the rules, and printing and
publishing them.

Copies of the paper are available
by writing Information Services, 1520
H St., N.W., Washington, DC 20005.
Please send a self-addressed, franked
mailing label, but do not send an
envelope. The report weighs 9 oz.

PACER is part of several pilot proj-
ects under wayat the FJC. Folio wing the
completion of development of several
large-scale court automation systems
(AIMS, BANCAP, and CIVIL), the FJC
has turned its attention to exploring and
testing ways to provide the information
collected in the court to information
users. Projects currently being tested
include a computer-generated voice-
synthesis system (the Voice Case Infor-
mation System) that is answering
120,000 information requests annual
in three bankruptcy courts (see
Third Branch, August 1988, at 1) anc
touch-screen system in use in the Dis-
trict of Columbia (see The Third Branch,
September 1988, at 3). ■

in 15

jajlv

BULLETIN OF THE rtjl
FEDERAL COURTS ^''~

Personnel

RCUIT JUDGES

mination

•dinand E. Fernandez, 9th Cir., Sept. 16

mination Withdrawn

■nard H. Siegan, 9th Cir., Sept. 16

STRICT JUDGES
vation

hard C. Erwin, Chief Judge, M.D.N.C,
Aug. 20

[lEF JUSTICE, from page 1

jresentative of the whole popula-
n. While there is "no question that
;al services are available to many
3ple today to whom they were not
ailable 35 years ago, particularly
or people and criminal defendants,"
! system as it exists today "partlcu-
ly ill-serves the large middle class"
rause of the dramatic rise in the cost
legal services in the United States

I because of delays, the Chief Jus-
3 said.

■^Those concerned with the admini-
Jtion of justice are coming increas-
;ly to realize that a full-dress jury
il is a costly form of justice, perhaps

II suited on the criminal side to the
udication of serious felony charges
i perhaps well suited on the civil
e to litigation between two corpo-
? giants." For small businessmen,
orcing couples, and "parties to
nerous other disputes who are not
ficiently poor to receive the benefit
egal assistance and not sufficiently
11-off to be able to pay the going
i for attorney's fees," alternative
pute resolution procedures such as
itration, mediation, and summary
/ trial can provide a "far simpler,

i expensive procedure which, while
dng some of the virtues of the
■ersary system of justice as prac-
d in our courts, has some very
lificant virtues of its own," the
ef Justice said.

lopies of the Chief Justice's speech
.available from Information Serv-
f, 1520 H St., Washington, DC
05. Please send a self-addressed
ling label, but do not send an
elope. ■

JCUS Committee on the Bicentennial of the U.S.
Constitution Asks Each Circuit Judicial Conference
To Make Bicentennial a Principal Theme

The Judicial Conference Committee
on the Bicentennial of the
Constitution, chaired by Judge Da-
mon J. Keith (6th Cir.), is urging that
the celebration of the "200th Birthday
of the Federal Courts" and the adop-
tion of the Bill of Rights be the princi-
pal themes at each circuit judicial
conference in 1989. The Committee
has obtained a bibliography of the
Judiciary Act of 1789, which created
the first federal court system, and

Burchill, Jr. (General Counsel, Admin-
istrative Office), Judge Dolores
Sloviter (3d Cir.), Judge Damon J.
Keith, Chairman (6th Cir.), Judge
Helen Nies (Fed. Cir.), Judge James
Noland (S.D. Ind.), Judge J. Harvie
Wilkinson III (4th Cir.); (Rear, left to
right) Christopher Reynolds, Esq.,
John Chastain (Assistant General
Counsel, Administrative Office), Judge
W. Brevard Hand (S.D. Ala.), Judge
Jaime Pieras (D.P.R.), Judge Adrian

hopes to assemble a roster of speak-
ers who will be available to address
the circuit judicial conferences on the
history and future of the federal
courts and the Bill of Rights. The
Committee also encourages other lo-
cal programs commemorating these
bicentennials and the display of
"200th Birthday" banners on federal
courthouses in 1989.

Pictured above are the Committee
members and staff who attended the
July meeting in Charlottesville, Va.
(Front row, left to right) William R.

Duplantier (E.D. La.). Judge Kenneth
Starr (D.C. Cir.) attended but is not
pictured.

Other committee members are Su-
preme Court Justice Harry A.
Blackmun, Retired Chief Justice
Warren E. Burger, Judge Arthur L.
Alarcon (9th Cir.), Judge Frank X.
Altimari (2d Cir.), Chief Justice Ed-
ward F. Hennessey (Supreme Judicial
Court of Mass.), Judge Patrick F. Kelly
(D. Kan.), Judge James H. Meredith
(E.D. Mo.), and Chief Judge Robert C.
Murphy (Md. Court of Appeals). ■

October 1988

THETHIRr BRANCH

1 HE Source

The publications listed below may be of inter-
est to readers. Only those -preceded by a check-
mark are available from the Center. When order-
ing copies, please refer to the document's author
and title or other description. Recjuests should be
in writing, accompanied by a self-addressed
mailing label, preferably franked (but do not send
an envelope), and addressed to Federal Judicial
Center, 1520 H St., N.W., Washington, DC
20005.

Brazil, Wayne D. "Protecting the Confi-
dentiality of Settlement Negotiations." 39
Hastings L.]. 955 (1988).

"Criminal Defense for the Poor, 1986."
Bureau of Justice Statistics, 1988.

Elliott, Philip C. "A Judge's Thoughts
About Criminal Instructions." 5 Cooley L.
Rev. 23 (1988).

Grunes, Allen P. "Exclusion of Plaintiffs
from the Courtroom in Personal Injury
Actions: A Matter of Discretion or Consti-
tutional Right?" 38 Case Western Reserve L.
Rev. 387 (1987-88).

VKastenmeier, Robert W. "Remarks on
Presentation of the Justice Award." Ameri-
can Judicature Society, Toronto, Canada,
Aug. 5, 1988.

Katzmann, Robert A. (ed.). Judges and
Legislators: Toward Institutional Comity.

Brookings Institution, 1988.

Laurence, Robert. "Martinez, Oliphant
and Federal Court Review of Tribal Activ-
ity Under the Indian Civil Rights Act." 10
Campbell L. Rev. 411 (1988).

Mallen, Ronald E. "Judicial Sanctions
1988." 17 Memphis State University L. Rev.
483 (1987).

Martineau, Robert J. "Subject Matter
Jurisdiction as a New Issue on Appeal:
Reining in an Unruly Horse." 1988 Brigham
Young University L. Rev. 1.

Mills, Richard H. "Commentaries: To
the New Lawyer." 12 Southern Illinois Uni-
versity L.J. 285 (1987).

1988 Survey of Books Relating to the
Law. 86 Michigan L. Rev. 1067 (1988).

Noseda, James D. "Limiting Off-Bench
Expressions: Striking a Balance Between
Accountability and Independence." 36
DePaul L. Rev. 519 (1987).

VPowell, Lewis P., Jr. "Capital Punish-
ment." Speech to the Criminal Justice Sec-
tion, ABA, Toronto, Canada, Aug. 7, 1988.

Prentice, Robert A. "Reforming Pimi-
tive Damages: The Judicial Bargaining
Concept." 7 Reu. of Litigation 113 (1988).

"Proceedings — Center for Public Re-
sources Legal Program, May 1988." 6 Alter-
natives to the High Cost of Litigation 131
(August 1988).

VRehnquist, William H. "The Old Order
Changeth." Remarks before the Australian
Bar Association, Sydney, Australia, Sept. 3,

1988.

Rosenberg, Maurice. "Resolving D*
putes Differently: Adieu to Adversary jK
tice?" 21 Creighton L. Rev. 801 (1987).

Schiller, Stephen A., and Peter V
Manikas. "Criminal Courts and Local L
gal Culture." 36 DePaul L. Rev. Zll (1987

Seventeenth Annual Review of Crim
nal Procedure: United States Suprem
Court and Courts of Appeals 1986-87. /
Georgetown L.J. 521 (1988).

Untereiner, Alan E. "A Uniform A]
proach to Rule 11 Sanctions." 97 Yale L
901 (1988).

Wright, R. George. "Judicial Responsi
to Long-Term Societal Decline." 30 Arizo^
L. Rev. 271 (1988). I

The Center held an orientation seminar for U.S. magistrates at the Dolley Madison House last month.
Among those magistrates in attendance were (first row, left to right) Robert Holter (D. Mont.), Paul
Greene (N.D. Ala.), Timothy Greeley (W.D. Mich.), James Graham (S.D. Ga.); (second row, left to
right) Deborah Robinson (D.D.C.), Sue Robinson(D. Del. ),JosephScoxnlle( W.D.Mich.), John Simon
(W.D. La.), and G.R. Smith (S.D. Ga.).

THE BOARD OF THE
FEDERAL JUDICIAL CENTER

Chairman

The Chief Justice
of the United States

Judge Alvin B. Rubin

United States Court of Appeals

for the Fifth Cincuit

Judge J. CHfford Wallace

United States Court of Appeals

for the Ninth Circuit

Judge Jose A. Cabranes

United States District Court

District of Connecticut

Chief Judge William C. O'Kelley
United States District Court
Northern District of Georgia

Judge David D. Dowd, Jr.

United States District Court
Northern District of Ohio

Judge Robert E. Ginsberg

United States Bankruptcy Court

Northern District of Illinois

L. Ralph Mecham, Director

Administrative Office of the

United States Courts

Federal Judicial Center fl

Judge John C. Godbold, Director
Charles W. Nihan, Deputy Director

October 1988

BULLETIN OF THE
FEDERAL COURTS

~l$i

Noteworthy

Nonparty witness may not invoke
tatute providing for disqualification
f judge. Nonparty witnesses who
ought to have a judge recused had no
landing to invoke 28 U.S.C. § 455, the
isqualification statute, the Third Cir-
uit has held. U.S. v. Sdarra, 851 F.2d
21 (3d Cir. 1988), rehearing and rehear-
tg en banc denied. The pehtioners who
Dught the judge's recusal were former
members of the executive board of a
)cal union that was put under trustee-
liip pursuant to a 1984 decision of the
f.S. District Court for the District of
few Jersey. In 1987 the government,
?lying on the 1984 judgment and on
ICO, sought to depose the petition-
rs. The government stated that the pe-
tioners' testimony might form the
redicate for additional relief neces-
iry to prevent future racketeering
iolations involving the local union,
he petitioners argued that the district
Durt did not have authority to compel
lem to submit to oral depositions
iven their compliance with the 1984
idgment and that the judge should be
isqualified pursuant to 28 U.S.C.

455(a) and (b)(1). The judge denied
le motion for recusal and held that
\e petitioners could be required to
ive testimony.

^ALENDAR

'ct. 2-A Metropolitan District Chief

Judges Conference
'ct. 3-5 Workshop for Judges of the

Sixth Circuit
ct. 12-14 Workshop for Judges of the

Eleventh Circuit
ct. 17-19 Workshop for Judges of the

Seventh Circuit
ct. 17-21 Orientation Seminar for New

Probation/Pretrial Officers
ct. 24-26 National Seminar for Judges

of U.S. Courts of Appeals
bt. 31-Nov. 2 Workshop for Judges of

the Fifth Circuit
ct. 31-Nov. 3 Workshop for New

Training Coordinators

On appeal, the Third Circuit held
that petitioners were, at this point,
only nonparty witnesses to an inves-
tigation rather than parties to an ac-
tual case or controversy; that the dis-
trict court's discovery order was ap-
pealable under 28 U.S.C. § 1291 not-
withstanding petitioners' failure to
incur a contempt order; that the gov-
ernment had standing to seek peti-
tioners' depositions; and that the dis-
trict court had power to compel them
as nonparty witnesses to submit to
oral depositions absent the institution
of a criminal or civil proceeding. As
to the issue of petitioners' standing to
challenge the judge's impartiality
under 28 U.S.C. § 455, the appellate
court reviewed the case law and leg-
islative history and read the section
as applying to the judge's participa-
tion in decisions affecting the sub-
stantive rights of litigants to an actual
case or controversy. Since there was
"no pending action before [the dis-
trict judge] in which the rights of the
petitioners are at issue," the appellate
court held that "the petitioners have
no standing to invoke section 455 in
their capacity as non-party wit-
nesses." The petitioners "have not
sustained an 'actual injury' within the
meaning of Article III," it said. More-
over, the depositions were not in the
context of a substantive proceeding
against a third party, nor were the
petitioners being asked to provide
privileged information. Should an
adversarial action before the district
judge be instituted that is designed to
modify or alter the substantive rights
of the petitioners, petitioners could
then invoke section 455, the appellate
court said.

Newspaper-intervenor cannot
compel party to terminated case to
provide access to documents no
longer within district court's super-
visory power. Third Circuit holds.
Where exhibits admitted into the
judicial record during a trial were
restored to their owner after a case
was terminated, a newspaper could
not compel the owner to give it access
to the documents, as the documents
were no longer in the district court's

JCUS Advisory Committees

On Civil and Criminal Rules

Meet in November

The Judicial Conference Advisory
Committee on Civil Rules will meet
Nov. 17-19 and the Advisory Com-
mittee on Criminal Rules will meet
Nov. 17-18. Both meetings will take
place in the courthouse of the Fifth
Circuit Court of Appeals at 600
Camp St. in New Orleans. The Advi-
sory Committee on Criminal Rules
will meet in the East Robing Room
(Room 228) and the Advisory Com-
mittee on Civil Rules will meet in the
West Robing Room (Room 258).
Meetings will start at approximately
9 a.m.

The public will be admitted to the
meetings as observers, but will not be
permitted to participate. Oral com-
ments will not be received from visi-
tors.

"supervisory power," the Third Cir-
cuit has held. Littlejohn v. BIC Corp.,
851 F.2d 673 (3d Cir. 1988). The mate-
rials were initially discovered under
the aegis of a protective order under
Fed. R. Civ. P. 26(c) requiring confi-
dentiality and were later admitted into
evidence at an open civil trial of a
products liability action. A jury found
the defendant liable for the plaintiff's
injuries. The defendant settled the case
before trial of the damages issue, and
the settled action was dismissed. The
original exhibits and deposition tran-
scripts introduced at trial were re-
turned to defense counsel after the
settlement, in accordance with the
court's administrative practice and in
conformance with the protective or-
der.

A newspaper subsequently filed a
motion for intervention in the action
and sought access to the trial record
after the defendant refused to make
available any evidence designated
confidential under the protective or-
der. The district court permitted the
newspaper to intervene and granted it
access to the judicial record, which
was held to include depositions and

See NOTEWORTHY, page 6

October 1988

theTHIRE branch

NOTEWORTHY, from page 5

exhibits that had been admitted into
evidence. The district court held, and
the appellate court affirmed, that the
defendant had waived whatever
rights to confidentiality the protective
order had created by failing to object
to the documents' admission into evi-
dence at trial. The defendant argued
that the exhibits admitted into evi-
dence lost their status as judicial rec-
ords when they were returned to their
owner after the case had been closed.
The district court held that the fact
that the exhibits and depositions were
withdrawn by counsel after trial and
settlement did not destroy their char-
acter as public records.

On appeal by the defendant in the
products liability suit, the appellate
court noted that at the time the news-
paper first sought access to the judicial
record, the underlying case had long
been settled, no appeal was pending,
and the contested exhibits had been
returned to counsel. Moreover, under
a local rule of court, if the exhibits had
not been returned, they would already
have been subject to destruction by the
district court clerk. "Must a court be
forever burdened with the responsibil-
ity of maintaining, supervising the
possession of, or adjudicating access
rights to, such documentary exhibits?
We believe not. This is an unreason-
able burden to inflict upon courts,
particularly at a time when litigation
continues to grow more complex and
voluminous." Thus, on these facts, the
exhibits were "no longer judicial rec-
ords within the 'supervisory power' of
the district court [citation omitted].
Neither the first amendment nor the
common law right of public access
empowers the district court to require
that litigants return such exhibits to
the court for the purposes of copy and
inspection by third parties." The ap-
pellate court emphasized that the
newspaper did have a right of access
to "items that properly remained part
of the judicial record, such as the
deposition testimony read into evi-
dence at trial or exhibits or portions
thereof transcribed and made part of

the official transcript." 851 F.2d at 683.
Press does not have First Amend-
ment right to attend summary jury
trial. Sixth Circuit holds. Cincinnati
Gas & Electric Co. v. General Electric Co.,
No. 87-3950 (6th Cir. Aug. 18, 1988).
Three electric utility companies under-
took jointly to build a nuclear power
plant. They sued General Electric and
an engineering firm over a contract
dispute. The parties negotiated a com-
prehensive protective order applying
to much of the material produced in
discovery, which the magistrate ap-
proved. The district court issued an
order requiring the parties to partici-
pate in a summary jury trial closed to
the press and public. A newspaper
moved to intervene in the action for
the limited purpose of challenging the
order closing the summary trial. The
court denied the motion, holding that
there is no First Amendment right of
access because there is no tradition of
access to settlement devices, including
summary jury trials, and public access
would not be significant to the func-
tioning of the nonbinding summary
trial. Following the summary trial, the
parties settled. The newspaper ap-
pealed the district court's order con-
cerning confidentiality of the sum-

mary jury process, arguing that the
summary jury proceeding is ar\alo-^
gous to a trial on the merits and there-*
fore should be subject to the First
Amendment right of access, and that
public access would play a significant
positive role in the functioning of the
judicial system and summary trials.

The Sixth Circuit rejected the
newspaper's arguments and affirmed
the judgment of the district court.
There is no historically recognized
right of access to summary jury trials,
the appellate court held. Moreover,
the summary jury trial is "designed to
facilitate pretrial settlement of the liti-
gation, much like a settlement confer-
ence," and "does not present any
matter for adjudication by the court."
"[Wjhere a party has a legitimate in-
terest in confidentiality, public access
would be detrimental to the effective-
ness of the summary jury trial in fa-
cilitating settlement," and thus, "pub-
lic access to summary jury trials over
the parties' objections would have
significant adverse effects on the util-J
ity of the procedure as a settlement"
device," the appellate court held.
"[T]he public would have no entitle-

See NOTEWORTHY, page 7

Positions Available

Librarian, Supreme Court of the
United States. The librarian is responsible
for the management of the Supreme Court
library. Responsibilities include general
supervision of 22 employees, management
of a collection of approximately 250,000
volumes, budgeting, procurement, space
planning, and management of automated
information systems. Law degree and ad-
vanced degree in library science preferred.
A minimum of 6 years of progressively
more responsible law library experience is
required. Management experience, compe-
tence with automated information systems,
strong interpersonal skills, and budgeting
experience are all required. Salary com-
mensurate with qualifications and experi-
ence. Closing date Oct. 14, 1988. Send SF
171 to Personnel Office, Supreme Court of
the United States, Room 3, Washington, DC
20543. Tel. 202/479-3404.

Clerk of Court, S.D. 111., East St. Louis,

IL. Salary from $54,907 to $71^77. Under
direction of Chief Judge, manages adminis-
trative activities of the office and oversees
performance of the office's statutory duties.
Applicants must have a minimum of 10
years of progressively responsible adminis-
trative experience in public service or busi-
ness, at least 3 in a position of substantial
management responsibility. Bachelor's de-
gree may be substituted for 3 years of the
required experience; postgraduate degree
in public, business, or judicial administra-
tion for 1 additional year of experience; and
law degree for 2 additional years. Law
practice may be substituted year for year
for the required management or general
experience. Applications accepted until
position fiUed; starting date Mar. 20, 1989.
Submit applications and resumes to A.
Marvin Helart, Qerk, U.S. District Court,
Southern District of Illinois, P.O. Box 249,
East St. Louis, IL 62202.

EQUAL OPPORTUNITY EMPLOYERS

October 1988

BULLETIN OF THE
FEDERAL COURTS

OTEWORTHY, from page 6

icnt to observe any negotiations lead-
ig to a traditional settlement, . . . and
le parties would be under no cons-
tutional obligation to reveal the con-
'nt of the negotiations. Thus, the
ublic has no first amendment right to
:cess to the summary jury trial." ■

EGISLATION, from page 1

rbitration conducted under the act.

• amend 28 U.S.C. to create a federal
mltiparty, multiforum basis for juris-
iction; this provision is intended to
elp in consolidating mass disaster liti-
ation;

• amend 28 U.S.C. to adjust the
mount required for diversity jurisdic-
on from $10,000 to $50,000;

• amend the Federal Judicial Center
atute, including the creation of a Fed-
■al Judicial Center Foundation that
'ould be authorized to accept gifts or
jrvices for the purpose of aiding the
'ork of the Center;

• expand the availability of court
iterpreter services to grand jury pro-
?edings and authorize circuit judicial
)uncils to identify the need for certifi-
ition of a language on a regional ba-
s;

• affect jury selection and service
rocedures, and include provisions
laking it easier for the clerk or his or
^r designate to excuse jurors;

• make procedural reforms to the
\arter of the State Jushce Institute,
\d reauthorize the Institute for one
iditional year;

• eliminate the Board of Certifica-
3n procedure for circuit executives.

In a related matter, the Senate Judi-
ary Committee's Subcommittee on
ourts and Administrative Practice
et to mark up S. 1482, a bill intro-
jced by that subcommittee's chair-
an. Sen. Howell Heflin. S. 1482 is sim-
ir in some respects to H.R. 4807 (see
te Third Branch, August 1987, at 5).

The following measures before Con-
jCss are also of interest to the judici-

• Sen. Orrin Hatch (R-Utah) intro-
Jced S. 2747, which would provide
deral court authority to enforce

rights secured by the Indian Civil
Rights Act of 1968. Sen. Hatch said that
his bill "strikes a legitimate balance
between the interests of the tribal gov-
ernments in exercising their powers of
self government and the rights which
Congress extended to individuals
through the 1968 Indian Civil Rights
Act."

From 1968 to 1978, the Indian Civil
Rights Act was routinely enforced in
both tribal and federal courts, but fed-
eral court review came to an end with
the Supreme Court's decision in Santa
Clara Pueblo v. Martinez, 436 U.S. 49
(1978), which held that the act does not
provide for a waiver of sovereign im-
munity and that it fails to provide a
private right of action for individuals
in federal court. Sen. Hatch quoted
from decisions of the Eighth and Tenth
Circuits and the District of Montana
expressing concerns over the failure of
some tribal governments to adequately
enforce rights, and noted reports of se-
rious complaints that have gone unre-
viewed by the federal courts due to the
Santa Clara holding. S. 2747 would
provide for federal court review and
enforcement after an individual has
exhausted his or her tribal remedies
and would prohibit the defense of sov-
ereign immunity in civil rights cases.
Whenever a question of tribal law is at
issue, the federal court would be re-
quired to "accord due deference" to the
tribal court's interpretation of tribal
laws and customs.

• Rep. Bill Grant (D-Ha.) introduced
H.R. 5217, which would reform the
procedures for collateral review of
criminal judgments. The bill would es-
tablish a three-year time limit for crimi-
nal defendants to apply for writs of
habeas corpus in federal court, but
only if the defendant has had access to
private counsel or an approved state-
funded legal assistance program.

• The House on Sept. 22 passed H.R.
5210, the Omnibus Drug Initiative Act,
as amended. The House had voted
Sept. 8 in favor of an amendment of-
fered by Rep. George W. Gekas (R-Pa.)
to the bill that would permit imposi-
tion of the death penalty on anyone
who kills in the course of a violation of

federal drug laws. Under the amend-
ment, if judges did not impose the
death sentence on convicted defen-
dants, they would be required to im-
pose a sentence of 20 years to life. The
Senate has previously approved a bill
that would provide for the possible
imposition of the death penalty in
drug-related killings of law enforce-
ment officers and in cases where "drug
kingpins" order killings (see The Third
Branch, July 1988, at 7).

The House in considering H.R. 5210
also approved an amendment offered
by Rep. Daniel E. Lungren (R-Cal.) that
would expand the exclusionary rule
"good faith" exception to warrantless
searches in drug cases. The House also
voted in favor of a "user accountabil-
ity" provision that would deny to con-
victed drug users certain federal bene-
fits, such as student loans and occu-
pancy in public housing.

• The House Veterans' Affairs Com-
mittee held a hearing on H.R. 639, the
Veterans' Administration Adjudica-
tion Procedure and Judicial Review
Act; S. 11, the Veterans' Administra-
tion Adjudication Procedure and Judi-
cial Review Act; and S. 2292, the
Veteran's Judicial Review Act. A bill
was then reported by the House Veter-
ans' Affairs Committee and referred to
the House Judiciary Committee for
further consideration. If this bill is ulti-
mately signed into law without
amendment, it would create an Article
I court. Judge Morris S. Arnold (W.D.
Ark.) testified on behalf of the Judicial
Conference. Judge Arnold and Judge
Stephen S. Breyer (1st Cir.) have previ-
ously testified before the Senate Com-
mittee on Veterans' Affairs that the
Conference supports judicial review of
constitutional issues and statutory in-
terpretations only and opposes judicial
review of any factual determinations of
the Veterans' Administration (see The
Third Branch, June 1988, at 2).

• The House passed S. 1934, the bill
to provide for a judiciary office build-
ing that will house the Administrative
Office of the U.S. Courts and the Fed-
eral Judicial Center and provide cham-
bers for retired Supreme Court Jus-
tices. ■

October 1988

iiim I iti 11111(^1 li'ii

theTHIRDbranch

JUDICIAL CONFERENCE, from page 1

judge. No tape recordings will be
made.

• Approved an experimental pro-
gram of videotaping as a means of
taking the official record of court pro-
ceedings, and designated the Chair of
the Committee on Judicial Improve-
ments to seek approval of the Director
of the Federal Judicial Center to de-
sign, conduct, and evaluate the pro-
gram.

• Approved an experimental pro-
gram of videoconferencing of prisoner
civil rights and habeas corpus cases.

• Approved recommendations of
the Committee on Defender Services,
including budget authorizations for
certain Federal Public Defender Or-

ganizations; sustaining grants to 12
death penalty resource center/com-
munity defender organizations; use of
funds for certain expert services; and
the incorporation into the guidelines
for administration of the Criminal
Justice Act of several measures con-
tained in the recent American Bar
Association resolution concerning rep-
resentation in death penalty federal
habeas corpus cases.

• Endorsed H.R. 4358 (the Federal
Employees Liability Reform and Tort
Compensation Act of 1988) and H.R.
4612 to make the Federal Tort Claims
Act the exclusive remedy for common-
law tort claims against federal officers
and employees.

• Approved recommended priori-
ties for funding death penalty resource

centers/community defender organic
zations and other CJA programs. ▼

• Delegated to the Defender Serv-
ices Committee authority to approve
revised grant requests of death pen-
alty resource center/community de-
fender organizations in limited
amounts.

• Established a "special" alternative
rate for death penalty habeas corpus
cases in three districts.

• Authorized the Committee on
Criminal Law and Probation Admini-
stration to promulgate guidelines for
probation and pretrial services officers
in relation to investigating and super-
vising offenders who have been ex-
posed to the human immunodefi-
ciency virus (HIV) or who have con-
tracted AIDS. ■

BULLETIN OF THE FEDERAL COURTS

theTHIRE^branch

First

Class

Mail

Vol. 20 No. 10 October 1988

The Federal Judicial Center

1520 H Street, N.W.
Washington, DC 20005

Postage and

fees paid

United States

Courts

Official Business

U.S. GOVERNMENT PRINTING OFFICE 1988-201-733-80008

?/ / / BULLETIN OF THE FEDERAL COURTS

avTiiw

JHE THIRD BRANCH

1^^ I'/eyy

VOLUME 20
NUMBER n
NOVEMBER 1988

Judicial Improvements
\mount. Creates Court

Congress has passed the Judicial
mprovements and Access to Justice
^ct, H.R. 4807, which, if signed by
'resident Reagan, will bring some
ignificant changes to the federal
ourts. Some of those changes are as
allows:

Diversity jurisdiction. The
mount in controversy in diversity
ases is raised from $10,000 to
50,000.

For purposes of establishing di-
ersity, the representative of an es-
ite of an infant or an incompetent
hall be deemed to be a citizen only
f the same state as the infant or
icompetent.

For diversity purposes, an alien
dmitted to the United States for
ermanent residence shall be
eemed to be a citizen of the state in
/hich he or she is domiciled.
I Federal Courts Study Commit-
;e. The Act creates a committee to

Bill Raises Diversity
Study Committee

study the future of the federal judi-
ciary. The committee's purpose is to
examine special issues before the
courts, to develop a long-range plan
with emphasis on alternative dis-
pute structure and on administra-
tion of the federal courts, and other
related matters. It will make a report
to the President, the Chief Justice,
the Judicial Conference, Congress,
the Conference of Chief Justices, and
the State Justice Institute, who will
use it to consider, evaluate, and rec-
ommend possible revisions of spe-
cific federal laws. The report is to be
transmitted by Mar. 31, 1990.

The committee will be composed
of 15 members, to be appointed by
the Chief Justice by Jan. 10, 1989. He
is to designate the chairperson of the
committee and all members are to
serve at his pleasure. The committee
is authorized to hold hearings.

See COMMITTEE, page 6

vJew Judiciary Office Building Legislation
jigned by President Reagan

President Reagan has signed the
jdiciary Office Building Develop-
lent Act, Pub. L. No. 100-480, au-
lorizing construction of a judiciary
ffice building adjacent to Union
tation in the District of Columbia,
his new 520,000 square foot build-
ig will permit consolidating into
ne location closer to the Supreme
!ourt building over 700 personnel of
ie Administrative Office of the U.S.
lourts. Federal Judicial Center, and
thers of the judicial branch now in
ight Washington, D.C., locations.

In addition to the AO and the FJC,
pace in the building is designated
5r retired Supreme Court Justices
nd for other offices necessary to the
idicial branch. The Chief Justice is
uthorized to decide how to use any
pace in excess of judicial require-
ments.

The new building will be con-
structed at the builder's expense on
land already owned by the federal
government and space will be pro-
vided to the judiciary under a 30-
year lease. At the end of the lease
term, title to the building will revert
to the government. Rentals under
the lease are expected to save
around $500 million compared to
present and projected commercial
space alternatives.

The Act establishes a 13-member
Commission to supervise the design,
construction, care, and security of
the building. The Architect of the
Capitol, under the supervision of the
Commission, is directed to select
among five competing development
proposals within 90 days of the Act.
The Chief Justice is given final au-
See JUDICIARY BUILDING, page 8

President Signs
FY89 Judiciary
Appropriation

Judiciary's FY89 appropriation bill
passed the House and Senate on
Sept. 27 and was signed by the Presi-
dent on Sept. 30. The judiciary had
requested $1,721,933,000; Congress
approved $1,398,973,000, a reduction
of $322,960,000 from the request but
an increase of $69,039,000, or 5.2
percent, over FY88. At the budget
summit, which took place in fall
1987, the executive branch and the
legislative branch committed them-
selves to limit appropriations in
FY89 over FY88 to only a 2 percent
increase. The judiciary fell far short
of its request and significantly short
of an increase of $168,000,000 needed
to fund judiciary operations at cur-
rent levels with no provision for
workload increases.

On May 21, the full House Appro-
priations Committee reported out
the FY89 appropriations bill for
Commerce, Justice, State, the judici-
ary and related agencies, and gave
the judiciary an increase of
$128,712,000, or 10 percent, over the
FY88 appropriations. The Senate
Appropriations Committee met on
June 18 and approved only a $30
million increase over the FY88 ap-
propriations enacted. The Confer-
ence Committee m^f 5ept. 23 and

See APPROPRIATlQ^^page 8

■%>

Inside

?K^

^?ft

Federal Appellate ^"^ Oo-v
Judges Confer ^p'.■^Q^^

FJC Surveys Court Use of
Personal Computers p. 2

Congress Consolidates
Federal Rules p. 5

<<>■

THE THIRD BRANCH

First National Appellate
Judicial Conference Held

Almost 170 judges of the U.S.
courts of appeals, including 90 per-
cent of those in active status, con-
vened in Washington, D.C., Oct. 24
to 26, for the Federal Judicial
Center's national conference on the
federal appellate judiciary in the
third century of the United States.
Judge John C. Godbold, FJC Direc-
tor, announced the meeting as a
conference "to examine the role of
the federal appellate judiciary and
to consider ways in which that role
might be performed in the future."
The event marked the first time in
the history of the Republic that all
federal appellate judges were able
to meet with one another.

The conference emphasized top-
ics of federal appellate jurisdiction
allocation, of jurisdiction between
the federal judicial system and the
state courts and administrative
agencies. There was discussion of
internal appellate operating proce-
dures, judicial governance, and re-
lations with the political branches.

Chief Justice William H.
Rehnquist opened the conference.
Justice Byron R. White participated
in the session on maintaining uni-
formity in federal law in the future.
Justice William J. Brennan, Jr.
closed the meeting.

The FJC's Appellate Education
Committee, which planned the
conference, is comprised of Judges
Jon O. Newman (2d Cir.), Chair-
man; Daniel M. Friedman (Fed.
Cir.); James K. Logan (10th Cir.);
and Kenneth W. Starr (D.C. Cir).

FJC Reports Preliminary Results of Survey <♦
On Personal Computer Use in Federal Courts

_K BULLETIN OF THE FEDERAL COURTS

theTHIRD branch

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

Co-editors
Alice O'Donnell, Director, Division of
Intcr-Judicial Affairs and Information
Services, Federal Judicial Center. Peter G.
McCabc, Assistant Director, Program
Management, Administrative Office of
the U.S. Courts.

The Center's Innovations and
Systenns Development Division has
conducted a survey of personal com-
puter usage in the federal courts.
This survey sought to

• identify the tasks being per-
formed on PCs;

• identify software packages being
utilized;

• identify functions not yet auto-
mated but which the courts feel
should be automated; and

• assess the courts' need for PC
training and support.

The survey was sent to the chief
judge and the clerk of each federal
court, and through them to each
chambers and each support office
(e.g., staff attorney, library, proba-
tion, and public defender) within the
court.

A total of 973 survey responses
were received from 165 different
courts: 680 from chambers, 163 from
clerks, and 130 from other offices.

The average respondent
reported that availability of a
PC is "very important" and
that PCs provide "great
benefit" to the court.

The volume of the response indi-
cates the courts' high degree of inter-
est in personal computer utilization.
The average respondent reported
that availability of a PC is "very
important" and that PCs provide
"great benefit" to the court.

Tasks performed on court PCs.
The responses indicate that the
courts' PCs are currently being
widely used for word processing,
accessing other automated systems
such as i.F.xis and wrsti.aw, case
management, and calendar manage-
ment. They are also being used for
property inventory control, person-
nel information, jury management,
financial management, and many
other functions.

Software utilized on court PCs.

Respondents reported nearly 100
commercial software packages that
are being used in the courts and
approximately 125 additional PC
software packages specially devel-
oped by or for the courts.

Recommended commercial soft-
ware packages include 16 utility

Of the 14 word processing
packages recommended,
WordPerfect received 231
recommendations whereas the
next most popular package
received only eight.

packages (disk maintenance, back-
ups, etc.), 14 word processing pack-
ages, 12 database packages, plus
local area network packages, com-
munications packages, and spread!
sheet packages.

Court-developed systems include
28 case management systems, 18
financial management systems, 13
calendar systems, 10 personnel and
leave systems, 10 property inventory
systems, 10 index systems (e.g., case
list, attorney list), plus statistical
reporting systems, jury systems, and
federal records center systems.

Commercial products in each
category do not share equal popu-
larity in the courts. For example, of
the 14 word processing packages
recommended, WordPerfect re-
ceived 231 recommendations
whereas the next most popular pack-
age received only eight.

The AO's soon-to-be-awardcd PC
procurement for the courts includes
the selection of one word processing
package, one database package, one
communications package, and one
spreadsheet package. Those selcc^
tions should lead to an increase^
standardization of commercial soft-
ware packages used in the courts.

See PC SURVEY, page 7

November 1988

BULLETIN OF THE
FEDERAL COURTS

bankruptcy Judges^ Magistrates Gain New PERSONNEL
benefits; New Bankruptcy Judgeships Created

Culminating two years of effort,
:he House adopted S. 1630, the Re-
irement and Survivors Annuities for
Bankruptcy Judges and Magistrates
\ct of 1988, on Oct. 19, 1988. The
\ct's provisions include the follow-
ng:

•One may retire at full salary at
ige 65 after 14 years of service;

•Leaving office before age 65
educes benefits by 2 percent per
/ear, up to a total reduction of 20
percent, and the pension still could
lot be drawn until age 65;

• For those with more than eight
>ut less than 14 years of service, the
tension is reduced proportionally;

• A contribution of 1 percent of
salary per year for 14 years is re-
quired;

•Retirement for disability after
ive years qualifies for 40 percent of
benefits; after 10 years the benefit is
proportioned in relation to the 14-
/ear predicate;

•Retirees forfeit annuities if they
;ubsequently practice law, but by
irst notifying the AO of their inten-
ion to do so they can preserve the
mnuity less future COL As;

•COLAs are available, not to ex-
:eed the pay of sitting judicial offi-
:ers;

•Benefit options include annuities
md lump-sum disbursement; in-
:umbent judicial officers will wish to
explore the alternative options un-

Calendar

Jov. 2^ Federal Circuit Court Li-
brarians

<Jov. 2-4 Video Orientation for
Newly Appointed District Judges

Jov. 14-16 Seminar for Bankruptcy
Judges

sfov. 14-16 Seminar for District
Deputies-in-Charge

Jov. 27-Dec. 2 Seminar for Newly
Appointed District Judges

Jov. 29-Dec. 2 Workshop for Dock-
eting Supervisors

der title 5 and § 377 of title 28;

•There is no survivor's pension,
but one can buy into a survivor's
annuity program;

•Survivors of annuitants will re-
ceive lump-sum balances if the prin-
cipal dies before receiving the annu-
ity or before the annuity totals the
lump-sum amount, and thereafter
they will receive the accrued and
owing amount;

•A thrift savings plan has been
created, permitting judicial officers
covered by 28 U.S.C. § 377 to contri-
bute up to 5 percent of their base
pay;

•The AO Director is charged to
report to Congress in five years on
the financial operation of the annu-
ity program, the contributions, and
the need for continuing deductions.

In support of the Act, Rep. Carlos
Moorhead reminded the House that,
since the Bankruptcy Reform Act of
1978, bankruptcy judges and magis-
trates had been losing ground both
on salary and on retirement benefits,
prompting a high rate of turnover.
Rep. Moorhead stated that, as the
ideal federal judicial officer was a
veteran of considerable legal practice
and experience, it was necessary to
augment the rewards for such serv-
ice to attract appointees later in their
legal careers and to discourage early
retirement in contemplation of sub-
sequent legal practice.

On a related matter, on Nov. 3 the
President signed H.R. 4064, which
authorizes seven new bankruptcy
judgeships, four of them recommen-
dations of the Judicial Conference, to
respond to greatly increased
caseloads. They are in the Districts
of Alaska, Colorado, Kansas, Ari-
zona, the Eastern District of Ken-
tucky, and the Eastern District and
Western District of Texas.

Effective Oct. 1, bankruptcy
judges and full-time magistrates re-
ceived salary increases from $72,500
to $82,340, which will first appear in
the November paycheck. ■

CIRCUIT JUDGES

Confirmation

John M. Duhe, Jr., 5th Cir., Oct. 14

DISTRICT JUDGES

Confirmations

Lewis T. Babcock, D. Colo., Oct. 14
Paul V. Gadola, E.D. Mich., Oct. 14
Robert Leon Jordan, E.D. Tenn.,

Oct. 14
Alex R. Munson, N. Mar. I., Oct. 14
Norwood Carlton Tilley, Jr.,

M.D.N.C, Oct. 14
Richard L. Voorhees, W.D.N.C,

Oct. 14
Jay C. Waldman, E.D. Pa., Oct. 14

Appointments

Simeon Timothy Lake III, S.D. Tex.,

Sept. 2
Jan E. Dubois, E.D. Pa., Sept. 6
Herbert J. Hutton, E.D. Pa., Sept. 6
Fern M. Smith, N.D. Cal., Sept. 12
Chas. R. Butler, Jr., S.D. Ala., Nov. 1
D. Brooks Smith, W.D. Pa., Nov. 1

Senior Status

G. Wix Unthank, E.D. Ky., June 14
Hiram H. Ward, M.D.N.C, Aug. 20
Robert F. Peckham, N.D. Cal.,
Nov. 10

Deaths

William J. Campbell, Senior District

Judge, N.D. 111., Oct. 19
Edward T. Gignoux, Senior District

Judge, D. Me., Nov. 4

BANKRUPTCY JUDGES

Appointment

Ronald B. King, W.D. Tex., Oct 1

Elevation

Larry E. Kelly, W.D. Tex., Oct. 1

Resignation

R. Glen Ayers, Jr., W.D. Tex.,
Sept. 30

MAGISTRATES— FULL-TIME

Appointments

John T. Maughmer, W.D. Mo.,

Sept. 29
James H. Payne, E.D. Okla., Oct. 1
David M. Cohen, D. Minn., Oct. 11

November 1988

THE THIRD BRANCH

Congress Approves Arbitration in Selected
Districts; AO, FJC to Report on Implementation

Provisions of the Federal Courts
Improvements and Access to Justice
Act, H.R. 4807, authorize ten U.S.
district courts to use arbitration. Au-
thorized courts are N.D. Cal., M.D.
Ra., W.D. Mich., W.D. Mo., D.N.J.,
E.D.N.Y., M.D.N.C, W.D. Okla.,
E.D. Pa., and W.D. Tex. The Act is
awaiting the President's signature.

The Act stipulates that these dis-
tricts may authorize arbitration of
any civil action (including any ad-
versary proceeding in bankruptcy) if
the parties consent, and may require
arbitration of any civil action (except
an alleged violation of a constitu-
tional right or one based on jurisdic-
tion under 28 U.S.C. § 1343) if the
relief sought consists only of money
damages not in excess of $100,000, or
a lesser amount the district court
may set (exclusive of interest and
costs). Ten additional judicial dis-
tricts may be approved by the Judi-
cial Conference of the United States
to authorize arbitration of any civil
action if (and only if) the parties con-
sent.

The district court is to establish
procedures by local rule; including
those for the exemption, sua sponte
or on motion, of cases where com-
plex or novel legal issues are in-
volved or where legal issues pre-
dominate over factual issues.

Each district court participating in
the arbitration program is to estab-
lish standards for the certification of
arbitrators.

Within 30 days after the filing of
an arbitration award with a district
court any party may file a written
demand for a trial de novo, and
upon such a demand the action shall
be restored to the docket.

A further provision states that the
district court shall provide by local
rule that the contents of any arbitra-
tion award shall not be made known
to any judge who might be assigned
to the case. There are three excep-
tions: (1) when it is necessary for the
court to determine whether to assess

costs or attorney fees; (2) when the
district court has entered final judg-
ment in the action or the action has
been otherwise terminated; and (3)
when it is necessary to use the infor-
mation to compile the Annual Re-
port of the Director of the AO.

The Judicial Conference may de-
velop model rules relating to proce-
dures for arbitration.

The AO Director is to include in
his Annual Report statistical infor-
mation about the implementation of

this program. The FJC, no later tha
five years after the date of enact|
ment, is to submit to Congress '
report on the implementation of the
program, including (1) a description
of the program; (2) a determination
of the "level of satisfaction"; (3) a
summary of program features that
can be identified as being related to
acceptance within and across judicial
districts; (4) a description of the lev-
els of satisfaction relative to the cost
per hearing; and (5) recommenda-
tions to Congress whether to termi-
nate or continue this or alternative
arbitration procedures. ■

Judges from China Visit AO and FJC

A delegation from the Chinese Training Center for Senior Judges visited
the Administrative Office of the U.S. Courts and the Federal Judicial Center
last month as part of a Ford Foundation program on U.S.-China relations. The
delegation will be visiting several cities and law-related institutions to secure
a better understanding of the American judicial system at the federal, state,
and local levels. Their interests covered a broad area of court administration
and the role of the U.S. Department of Justice, with primary emphasis on ob-
serving and discussing judicial training.

China's Judicial Training Center was started in early 1988 as the country's
principal institution for the preparation of judges for the bench.

Pictured above arc (1. to r.) Zhao Zhenjiang, Professor and Dean, Peking Uni-
versity Law School, Beijing; Wang Zenong, State Commission on Higher Edu-
cation and member of the Committee of the Training Center for Senior Judges
at Beijing; Zhou Daoluan, Justice of the Supreme People's Court of the
People's Republic of China and leader of the delegation; Gu Chun Dc, Dean
of the Department of Law, People's University of China; and Wang Chen-
guang. Deputy Dean of the Law Department, Peking University.

November 1988

BULLETIN OF THE
FEDERAL COURTS

Rules Enabling Act
Provisions Revised,
Consolidated

In title IV of the recently passed
Judicial Improvements and Access
to Justice Act, H.R. 4807, Congress
amended the Rules Enabling Act to
consolidate all the current rules
enabling provisions into chapter 131
ot 28 U.S.C. and standardize the lan-
guage applicable to the rules pro-
cess. The amendments codify the
current standing committee, advi-
sory committee, and Judicial Con-
ference roles in the rules process de-
veloped over 40 years, and require
public notice and opportunity to
comment, and public meetings un-
der most circumstances. The Su-
preme Court must transmit pro-
posed rules to Congress no later
than May 1 of the year in which the
rules are to become effective. The
rules would take effect no earlier
than Dec. 1 of that year (unless oth-
erwise provided by law).

In addition, the changes provide
that each federal court authorized to
prescribe rules under 28 U.S.C.
§ 2071 (except the Supreme Court)
shall appoint an advisory committee
to study the rules and internal oper-
ating procedures of such court;

The amendments also provide
that:

•The Director of the Administra-
tive Office of the U.S. Courts shall
periodically compile the following:
(1) local rules promulgated by
courts other than the Supreme
Court, (2) rules promulgated by the
judicial councils and the Judicial
Conference of the United States for
the conduct of judicial discipline
proceedings under 28 U.S.C.
§372(c)(ll), and (3) orders relating
to judicial discipline required to be
publicly available under 28 U.S.C.
§ 372(c)(15);

•The Judicial Conference shall
^periodically review local rules
promulgated by the courts of ap-
peals, the Claims Court, and the
Court of International Trade, and is

Quadrennial Commission Holds Judicial
Compensation Hearings in Washington, D.C.

The 1988 Quadrennial Commis-
sion on Executive, Legislative, and
Judicial Salaries held public hearings
on judicial compensation in Washing-
ton, D.C. Nov. 10 and 11.

Members of the Commission are
appointed by the President, the Chief
Justice,and members of the House of
Representatives, and the Senate. The
members of the Commission are
Lloyd N. Cutler, Chairman (Attorney,
Washington, D.C); William M. Agee
(Chairman and CEO, Morrison-
Knudsen Co., Boise, Idaho); Preston

R. Tisch (President and CEO, Loews
Corp., New York, N.Y.); James T.
Lynn (Chairman, Aetna Life &
Casualty, Hartford, Conn.); Carlisle
Humelsine (Chairman, Colonial
Williamsburg Foundation, Wil-
liamsburg, Va.); John J. Creedon
(President and CEO, Metropolitan
Life Insurance Co., New York, N.Y.);
William R. Ratchford (Attorney,
Washington, D.C); Thomas F.
Eagleton (Attorney, St. Louis, Mo.);
Charles McC Mathias (Attorney,
Washington, D.C).

authorized to modify or abrogate
any such local rule found inconsis-
tent with federal law (amending 28
U.S.C. § 331);

• The relevant judicial council
shall periodically review local dis-
trict court rules for consistency with
the national rules;

•Local rules duly issued shall
remain in effect unless modified or
abrogated by the judicial council of
the relevant circuit or the Judicial
Conference, as applicable;

•Local rules shall be promulgated
only after advance public notice and
opportunity for comment. General
orders issued by judicial councils
related to practice and procedure, as
well as judicial discipline rules, must
also be preceded by appropriate
notice and opportunity for comment;

•Copies of local rules and general
orders relating to practice and proce-
dure shall be furnished to the Judi-
cial Conference and the AO and be
made available to the public. ■

Noteworthy

Anonymous jury permissible.
Third Circuit holds. The empanel-
ment of an anonymous jury was
justified in a case involving a re-
puted organized crime figure, where
prosecution witnesses claimed that a
prospective witness had been killed
in the past, a judge murdered, and
attempts made to bribe other judges,
the Third Circuit has held. U.S. v.
Scarfo, 850 F.2d 1015 (3d Cir. 1988).

In the extortion trial of the alleged
"boss" of an organized crime group,
the district judge granted the
government's motion to empanel an
anonymous jury. During voir dire
neither party was permitted to learn
the prospective jurors' names, ad-

dresses, or places of employment.
The prospective jurors completed an
extensive written questionnaire on
such topics as the nature of their em-
ployment, neighborhoods, educa-
tion, reading and television tastes,
organization memberships, hobbies,
previous service as jurors in criminal
cases, and connections to law en-
forcement agencies. The judge per-
sonally examined the prospective
jurors and permitted further ques-
tioning by counsel. The judge told
the jurors that they would be se-
lected on an anonymous basis and
sequestered, and emphasized that
anonymity was intended to protect
the interests of both prosecution and
defense. The defendant was con-
See NOTEWORTHY, page 7

November 1988

theTHIRD branch

Technical Assistant, Fed. Cir.

Duties include reviewing briefs and
panel-approved opinions for publica-
tion, assisting with evaluation reports,
advising judges and law clerks on
legal or technical matters, researching
technological and legal matters, and
preparing research memos. Work in-
cludes patent issues. Minimum re-
quirements are undergraduate degree
in or related to electrical engineering
or electronic technology and J.D. or
LL.B. Admission to a bar and experi-
ence in intellectual property law, engi-
neering, or high technology desirable.
Open until filled. Send SF-171 and
resume to Senior Technical Assistant,
U.S. Court of Appeals, 717 Madison
PI., N.W., Washington, DC 20439.

Clerk, Bankr. Ct., S.D. Cal. Pro-
vides all administrative support serv-
ice required by the court. Supervises
56 personnel and provides support
services to four judges. Requires at
least 1 0 years of progressively respon-
sible management experience, thor-
ough understanding of automation
concepts and applications. Under-
graduate degree in public or business
administration and graduate or law
degree preferred (graduate or law de-
gree may be substituted for two years
of required experience). Entry level,
salary $67,038 per year. Submit SF-1 71
and detailed resume and references
by Dec. 1, 1988, to Personnel, Clerk of
the Court, U.S. Bankruptcy Court, 940
Front St., Room 5N26, San Diego, CA
92189.

Clerk, Bankr. Ct., S.D. Ind.
Requires a minimum of 10 years of

Positions Available

progressively responsible ad-
ministrative experience, at least three
in position of substantial management
responsibility. Active practice of law
may be substituted on a year-for-year
basis, and education may be
substituted as follows: bachelor's
degree equals three years;
postgraduate degree in public,
business, or judicial administration
equals one additional year; law degree
equals two additional years. Law
degree, legal practice, and training or
experience in judicial administration
highly desirable. Salary range $46,679
to $72,000. Send four sets of resume
and cover letter by Dec. 31 to Chief
Bankruptcy Judge Robert L. Bayt,
Room 317-A, U.S. Courthouse, 46 E.
Ohio St., Indianapolis, IN 46204.

Clerk, Bankr. Ct, E.D. Mo. Head-
quartered in St. Louis, the court has
three bankruptcy judges, their staffs,
and 28 deputy clerks. AppHcant
should have at least 10 years of pro-
gressive management experience, in-
cluding three with significant respon-
sibility; thorough understanding of
modem management techniques, in-
cluding utilization of automation; and
interest in judicial management. Un-
dergraduate degree preferred, and
graduate/legal degree in business or
public administration or legal practice
experience may be substituted for
some of experience requirement. Sal-
ary $57,158 to $74,303, effective Janu-
ary 1989. Submit SF-171, resume, and
application letter by Dec. 30, 1988, in
sealed envelope marked "Confiden-
tial 88-4" to William D. Rund, Clerk,

EQUAL OPPORTUNITY EMPLOYERS

U.S. Bankruptcy Court, 1114 Market
St., Room 730, St. Louis, MO 63101.
Clerk, Bankr. Ct., W.D. Mich.

Manages the office under direction of
the chief judge. Must have minimum
10 years of progressively responsible
administrative experience in public
service or business, at least three with
substantial management responsibil-
ity. Bachelor's degree may be substi-
tuted for three such years; postgradu-
ate degree in public, business, or judi-
cial administration for one additional
year; a law degree for two additional
years; and legal practice experience
substituted year for year. Salary from
$54,907 to $71,377. Submit SF-171 and
detailed resume by Dec. 31, 1988, to
Sheila Kooistra, U.S. Bankruptcy
Court, P.O. Box 3310, Grand Rapids,
Ml 49501.

Official Court Interpreter (Span-
ish/English), S.D.N.Y. Duties include
interpreting for the court and related
offices in various proceedings, trans-
lating written documents, and tran-
scribing tape-recorded conversations.
Requirements: Certification from the
AO, at least two years of experience,
extensive experience in simultaneous
interpretation using electronic equip-
ment and in consecutive mode, plus
the interpersonal skills for dealing
with defendants, witnesses, court per-
sonnel, the bar, and the general public.
Experience must be documented in the
submission. Salary from $25,226 to
$33,218 annually; 120-day probation-
ary period. Submit application to Per-
sonnel Office, U.S. Courthouse, Room
21, 40 Centre St., New York, NY 10007.

COMMITTEE, from page 1

The Act specifics that the Admin-
istrative Office of the U.S. Courts, the
Federal Judicial Center, "and each
department, agency, and instrumen-
tality of the executive branch of the
Government, including the National
Institute of Justice shall furnish the
Committee information and assis-
tance" that the committee may deem
necessary to carry out its functions.

The Director of the AO is designated
to furnish staff and technical assis-
tance. The committee is also author-
ized to appoint advisory panels,
including members of the public, to
support the committee with exper-
tise in specific areas.

The Act specifies that the commit-
tee will cease to exist 60 days after it
transmits its final report.

An amount of $300,000 is author-

ized for each of the fiscal years 1989
and 1990.

Salaries of the judges of the U.S.
Claims Court, through an amend-
ment to title X of H.R. 4807, were
established at the same rate of pay as
judges of the U.S. district courts. ^

In another title of H.R. 4807, therF
was congressional action on arbitra-
tion programs; these changes are
detailed on p. 4 of this issue. ■

November 1988

BULLETIN OF THE
FEDERAL COURTS

^IL

sJOTE WORTHY, from page 5

dieted of conspiracy and extortion.

The defendant claimed on appeal
hat the jury selection procedure im-
paired his right to exercise peremp-
:ory challenges and infringed on the
^resumption of innocence. The ap-
pellate court noted that because
'voir dire is not of constitutional
dimension, limitations affecting per-
emptory challenges need not be re-
/iewed with the close scrutiny re-
served for encroachments on the
undamental rights of an accused."
\1 though the issue was one of first
mpression in the circuit, the court
•eviewed case law from other fed-
eral district and circuit courts and
roncluded that "defendant was not
ieprived of information reasonably
lecessary to the intelligent exercise
)f his peremptory challenges" and
hat the trial judge had not abused
lis discretion in empaneling an an-
jnymous jury. The court distin-
guished this from the rule in capital
:ases, citing 18 U.S.C. § 3432. The
ippellate court also found that the

'C SURVEY, from page 2

slevertheless, some functions are not
overed by those products and some
ourts will continue to have their
»wn commercial software prefer-
■nces.

The large number of court-devel-
iped systems designed to serve the
ame function (e.g., 28 case manage-
nent systems) creates a need to
levise some standard, objective cri-
eria for describing and comparing
hose systems. The I&SD Division is
n the process of collecting informa-
ion for those standard descriptions
nd compiling it into a catalog for
ise by the courts. The catalog, which
5 expected to be available to courts
•y the end of the year in both elec-
ronic and print form, will contain
^iformation regarding both the
ommercial packages and the court-
leveloped systems that have been
ised and recommended by the
ourts. The catalog will be supple-

trial judge's instructions adequately
protected the defendant from pos-
sible adverse inferences by the ju-
rors, and affirmed the conviction.

Department of Justice reported
that 1987 personal and household
crimes numbered 34.7 million, rep-
resenting a 1.8 percent increase over
1986. In 1986 about 34.1 million per-
sonal and household crimes were
reported, said the Bureau of Justice
Statistics on Oct. 9, 1988. This is the
first increase in crimes since 1981;
the 1987 figure is still 16 percent less
than in 1981. Single copies of the
National Crime Survey bulletin
"Criminal Victimization, 1987"
(NCJ-1 13587), may be obtained from
the Criminal Justice Clearinghouse,
Box 6000, Rockville, MD 20850, (tel.
(301) 251-5550; from outside Mary-
land and Washington, D.C. (800)
732-3277).

Juror utilization report issued.
The AO has issued the quarterly
report on juror utilization for the 12-
month period ending June 30, 1988.
Copies have been sent to all clerks of
the courts. ■

mented by a software clearinghouse
facility for those court-developed
systems made available for general
dissemination.

Functions not yet provided on
PCs. Respondents listed numerous
functions that they would like to
perform on their PCs but could not,
because of a lack of software or
expertise. Some of those functions
have already been developed by
other courts, and the catalog should
facilitate the sharing of that soft-
ware.

Courts' need for PC training and
support. Most respondents felt that
their past training, level of knowl-
edge, and adequacy of expert assis-
tance fell in the middle of a scale
ranging from "unacceptable" to
"excellent." Many reported that they
were self-taught, and many, while
praising the experts who assist them,
complained that they had no expert
who was readily available. They
indicated a need for both additional

THE BOARD OF THE
FEDERAL JUDICIAL CENTER

Chairman

The Chief Justice
of the United States

Judge Alvin B. Rubin

United States Court of Appeals

for the Fifth Circuit

Judge J. Clifford Wallace

United States Court of Appeals

for the Ninth Circuit

Judge Jose A. Cabranes

United States District Court

District of Connecticut

Chief Judge William C. O'Kelley
United States District Court
Northern Distrtict of Georgia

Judge David D. Dowd, Jr.

United States District Court

Northern District of Ohio

Judge Robert E. Ginsberg

United States Bankruptcy Court

Northern District of Illinois

L. Ralph Mecham, Director

Administrative Office of the

United States Courts

Federal Judicial Center

Judge John C. Godbold, Director

Charles W. Nihan, Deputy Director

PC training and additional expert
assistance.

The AO's upcoming PC procure-
ment will include training programs
for some aspects of PC usage. In
addition, the I&SD Division,
through its Automation Training
Project, will be working to make the
Center's Media Library more benefi-
cial to PC users and to develop
additional training curricula for PC
support personnel.

Further information about the
survey is available from Gary Bock-
weg of the Innovations and Systems
Development Division, tel. (202) 633-
6400. ■

November 1988

THE THIRD BRANCH

APPROPRIATIONS, from page 1

resolved the differences between the
Senate and the House bills by appro-
priating the $69 million increase.
Under the appropriation, the AO
received an appropriation of
$33,600,000 for "salaries and ex-
penses"; the FJC received
$11,200,000 for "salaries and ex-
penses/'

In addition, however, the Com-
mittee supplemented the judiciary's
new budget authority by registry
funds held by the courts. (A 1 per-
cent fee would raise about $15 mil-
lion.) The Conference Committee
also authorized funding the judici-
ary for up to $1.5 million from the
Vaccine Injury Fund for one year to
process vaccine injury cases, and
authorized the establishment of
death penalty habeas corpus re-
source centers in South Carolina,
Alabama, Arizona, Mississippi, and
Texas.

Although the judiciary's appro-
priation fell far short of its request,
the Commerce Department appro-
priation (excluding funds for the Pe-
riodic Census and the National Oce-
anic and Atmospheric Administra-
tion) was increased only 1.9 percent,
the Justice Department only 2.8 per-

cent (excluding Prisons), and the
State Department only 1.6 percent.
Finally, the legislative branch in-
creased its budget authority by only
3.4 percent. During the closing days
of the 100th Congress, action on the
FY89 drug supplemental was com-
pleted. The judiciary received an
additional $51 million in new budget
authority for drug-related programs,
which was allocated among the fol-
lowing accounts: "salaries and
expenses," $35 million; "defender
services," $15 million; "fees of jurors
and commissioners," $1 million. In
addition, funding was included in
Defender Services for establishing
additional death penalty habeas cor-
pus resource centers in California,
Florida, Kentucky, North Carolina,
and Oklahoma.

The Executive Committee of the
Judicial Conference met Oct. 26 at
the AO and approved a spending
plan for the operation of the courts
based on the appropriations ap-
proved for FY89. The plan, which
distributes available funding among
all the judiciary programs and activi-
ties, represents a consensus arrived
at among the chairmen of the Judi-
cial Conference committees whose
programs are affected by the budget

and the chairman of the Budgeti
Committee. ■"

JUDICIARY BUILDING, from page 1

thority over all decisions in the proc-
ess. The Commission is to be com-
posed of the following individuals |
or their designees:

•two members from among the
Justices of the Supreme Court and!
other federal judges, to be appointed
by the Chief Justice;

• the members of the House Office
Building Commission;

• the Majority Leader and the
Minority Leader of the Senate;

•the Chairman and the ranking i
minority member of the Senate)
Committee on Rules and Admini-
stration;

•the Chairman and the ranking
minority member of the Senate
Committee on Environment and
Public Works;

•the Chairman and the ranking
minority member of the House
Committee on Public Works and
Transportation. '

The Commission will be respon-
sible for the rules and regulations
formulated under the Act governing n
the use and occupancy of the build- f
ing. ■

^\ bull:

BULLETIN OF THE FEDERAL COURTS

THE^nHDDRD BRANCH

First
Class
Mail

Vol 20 No. 11 November 1988

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

Postage an
fees paid
United Stat
Courts

Official Business

U.S. GOVERNMENT PRINTING OFFICE 1988-241-150-80009

BULLETIN OF THE FEDERAL COURTS

THE THIRD BRANCH

aEUits

VOLUME 20 !»•*• I |i *^
NUMBER 12 0^«^'i?
DECEMBER 1988

A Holiday Message from The Chief Justice

It is my pleasure to extend to all of
the members of the federal court
"family" my best wishes for a happy
holiday season.

As we reflect on the past year,
there is much for which we can be
thankful and from which we can take
satisfaction. First and
foremost, the confir-
mation of Justice
Anthony Kennedy
brought the Supreme
Court back to full
strength. After labor-
ing for many months
with only eight mem-
bers, we have all
benefitted immeas-
urably from Justice
Kennedy's ability
and congeniality.

This past fall, the
first nationwide conference of Judges
of the United States Courts of Ap-
peals was held in Washington, D.C.
These judges had the opportunity to
consider the future of the federal
courts and the challenges likely to be
presented in coming years. For some
of the judges, it was their first oppor-
tunity to meet many of their
colleagues. I have no doubt that the
shop-talk and personal exchanges
which took place will benefit the fed-
eral courts in the years to come.

At this holiday season, I would
like to be able to report that 1988
also saw an appropriate rise in the
salaries of federal judges. Unfortu-
nately, such action has not yet
occurred, and the federal judiciary
remains undercompensated in
comparison with
the rest of the legal
profession. As we
look to the new
year, we are hope-
ful that in light of
the recommenda-
tions of the
President's Salary
Commission a suit-
able increase in
judicial salaries will
soon be forthcom-
ing.

I thank each of
you for your good efforts during
the past year and look forward to
working with you in 1989. Mrs.
Rehnquist joins me in extending to
you and to your families best
wishes for a Merry Christmas and a
Happy New Year.

Sincerely,

Veterans' Judicial Review Act Creates
New Court of Veterans Appeals

Veterans gained the right to judi-
;ial review from final decisions of the
Board of Veterans Appeals and lim-
ted payment of contingent attorneys'
ees under S. 11 (Pub. L. No. 100-687),
:he Veterans' Judicial Review Act,
A^hich President Reagan signed Nov.
18. The Act establishes a U.S. Court
jjf Veterans Appeals with exclusive
urisdiction to review decisions of the
3oard of Veterans' Appeals and to af-
irm, modify, reverse, or remand, as
ippropriate. The scope of appeal will
nclude:

• the power to decide relevant
questions of law; constitutional,
statutory, and regulatory interpre-
tation; and meaning and applicabil-
ity of actions of the Administrator;

• the power to compel acts of
the Administrator that have been
withheld;

• the power to set aside findings
of fact and hold them unlawful if
clearly erroneous;

• the power to hold unlawful
certain other findings, decisions.

See VETERANS APPEALS COURT, p. 6

Quadrennial
Commission Witnesses

Support Increased
Judicial Compensation

In hearings held Nov. 10 and 11
in Washington, D.C, the Quadren-
nial Commission on Executive, Leg-
islative and Judicial Salaries heard
from numerous witnesses with dis-
tinguished records of public service,
all advocating increased compensa-
tion for federal judges, executives
and legislators.

Judge Frank M. Coffin (1st Cir.),
Chairman of the Committee on the
Judicial Branch of the Judicial Con-
ference of the United States, pre-
sented a report entitled Promises
Made, Promises Still Unkept, which set
out historical and comparative data
that he described as "the most com-
plete judicial branch submission in
the two decades of Quadrennial
Commission activity." The report
focused on questionnaire responses
from 638 of the 710 active judges. All
respondents described financial
strictures compared with private sec-
tor income levels, and many detailed
hardships on families and referred to
erosion of purchasing power over
time. Many also noted that outside
income and assets, part-time teach-
ing, and debt underwrote their stan-
dard of living. One said that he felt
he was "inflicting a life of genteel
poverty upon his family in order to
be a federal judge." Younger
judges — v.'ith children to educate

See QUADRE^WIAlieBl*I^sllt^ii^N, jji'S ILLVHOI

Inside

Marshals Service„„^,. 2

Anti-Drug Abuse Act
Signed

Jury Act Amendments 3

1989 Circuit Conferences 4

DEC 2 o -jQ^

OSITOKY

THE THIRD BRANCH

U.S. Marshals Service Designated a Bureau in
Department of Justice on Eve of 200th Year

The U.S. Marshals Service has
been statutorily designated a bu-
reau within the Department of Jus-
tice, rather than a collection of rela-
tively autonomous district offices,
as had been the case for 200 years.
Beginning at § 7608, the Anti-Drug
Abuse Act of 1988, Pub. L. 100-690,
streamlines, modernizes, and con-
solidates related existing statutory
provisions, providing explicit au-
thority for functions the marshals
and their deputies have in the past
traditionally performed.

Although the office of U.S. mar-
shal was created by act of the 1st
Congress on Sept. 24, 1789, the
Marshals Service has until now ex-
isted only by order of the Attorney
General.

The legislation, originally intro-
duced as a separate bill that was
endorsed by the Judicial Conference
of the United States last March,
spells out the authority and duties
of the Marshals Service, restating its
traditional and primary responsibil-
ity for providing security for the
federal courts and executing court
orders. It also authorizes the Service
to provide personal protection to
judges, witnesses, and other threat-
ened persons in connection with
judicial processes and other official
proceedings. Law enforcement offi-
cers of the Service are now provided
with specific authority to conduct

*+ft, BULLETIN OF THE FEDERAL COURTS

theTHIRD branch

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

Co-editors
Alice O'Donnell, Director, Division of
Inter-Judicial Affairs and Information
Services, Federal Judicial Center. Peter G.
McCabe, Assistant Director, Program
Management, Administrative Office of
the U.S. Courts.

investigations of fugitives and to
provide for the custody, care, and
transportation of unsentenced fed-
eral prisoners in Service custody. All
these responsibilities, together with
the management and disposal of
seized criminal assets, have become
more burdensome with the increase
in drug cases.

Marshals Service Director Stanley
E. Morris pointed out, "The new
provisions respond to several con-
cerns of the Judicial Conference. It
gives the Marshals Service authority
to enter personal services contracts
for security guards, permitting more
efficient use of funds appropriated
to the courts' security needs. In
addition, it removes the unrealistic
$6 per day limit on court bailiff sala-
ries without fixing the salary level or
otherwise affecting the courts' ap-
propriations."

The current system of presiden-
tial appointment of U.S. marshals
with the advice and consent of the
Senate is retained, with the same
method used to designate the Direc-
tor of the Service. However, tempo-
rary vacancies in the office of mar-
shal will now be filled by the Attor-
ney General rather than by the dis-
trict court.

A key feature designed to
strengthen the administration of jus-
tice in the District of Columbia is
creation of the new Office of Marshal
for the Superior Court of the District
of Columbia. The services provided
to the D.C. Superior Court are vastly
different from those for other federal
district and circuit courts, and the
Marshals Service district in that
court has the greatest number of
personnel of any district. The new
office is intended to ensure meeting
the unique needs of the District of
Columbia.

In a related action. Congress
adopted a resolution to declare Sept.
24, 1989, as "United States Marshals
Bicentennial Day" and asked the
President to issue a proclamation to

Spanish/English

Interpreting

Certification Test Set

The Administrative Office has
announced a Mar. 4, 1989, written
examination for Spanish/English
interpreters, the first step of the
certification process established
pursuant to the Court Interpret-
ers Act of 1978, at 28 U.S.C.
§ 1827(b). Successfvil candidates
from the written examination will
be given the oral test in July or
August 1989. Testing will be of-
fered once in 1989 and only in
certain cities.

The Act requires courts to use
certified interpreters for all pro-
ceedings covered by the Act and
permits use of otherwise compe-
tent but uncertified interpreters
only if no certified interpreters
are reasonably available.

Successful candidates will be
placed on an eligibility list from
which certified court interpreters
may be chosen. FuU-time, sala-
ried interpreters, as of Jan. 1,
1989, will be designated as JSP-10
and JSP-11 (salary ranges $26,260-
$37,509 annually). The freelance
certified interpreter fee is $210
per day.

The AO has issued an exami-
nation announcement, which has
been posted in federal judicial
workplaces. It is also available
through the University of Ari-
zona Federal Court Interpreter
Certification Project, Modern
Languages Building, Room 456,
University of Arizona, Tucson,
Arizona 85721, or by telephoning
them from 8 a.m. to 5 p.m. RMT
at (602) 621-3687. The application
fee is $25 and the deadline is Jan.
15, 1989.

that effect. Director Morris said that
one of the first events celebrating the
Service's bicentennial will be the
opening on Dec. 9 of a special Smith-
sonian Institution exhibit in the U.S.
Supreme Court Building entitled^
America's Star: U.S. Marshals, 1789-^
1989. The exhibit will be shown in 12
cities in the United States after its
Washington, D.C, debut. ■

December 1988

iHii

:;^^^:-

BULLETIN OF THE
FEDERAL COURTS

Changes in Jury Service Exemptions, Excuses,
)As Jury Act Amendments Become Effective

The Jury Act of 1968 has been
amended by title VIII of H.R. 4807,
the Judicial Improvements and
Access to Justice Act (Pub. L. No.
100-702, 102 Stat. 4642). (See The
Third Branch, November 1988, for
details of the rest of the Act.) The
amendments became effective upon
President Reagan's Nov. 19
signature of the Act, and they do the
following:

• limit jury service exemptions to
members of the armed services,
federal and state public officers, and
members of fire and police
departments;

• authorize automatic excuses
from jury duty for "public agency
volunteer safety personnel" (fire-
fighters, rescue squads, ambulance
crews);

• permit temporary excuses on

grounds of undue hardship, or ex-
treme inconvenience;

• eliminate the requirement that
jury lists be alphabetical;

• authorize delegation of jury se-
lection functions to non-court per-
sonnel;

• authorize two-year experimen-
tal testing of one-step qualification
and summoning in as many as 10
courts to be selected by the Judicial
Conference of the United States.

The AO has disseminated copies
of relevant portions of the Act with
an analysis. David Williams in the
Court Administration Division at
FTS 633-6221 is available to answer
questions on the volunteer safety
personnel excuse. For general ques-
tions on title VIII, call Deputy Gen-
eral Counsel Robert Loesche at FTS
633-6127. ■

) Anti-Drug Abuse Act Creates New Office to
Oversee Unified National Drug Strategy

Before adjournment the 100th
Congress passed the Anti-Drug
Abuse Act of 1988, Pub. L. No. 100-
690, and President Reagan signed
the Act on Nov. 19. As passed, it
combines several separately intro-
duced bills, some unconnected to
substance abuse. The following are
summaries of drug-related sections.

Coordinating national drug pol-
icy. The Act establishes an Office of
National Drug Control Policy within
the Executive Office of the President,
to be headed by a Director ap-
f)ointed by the President subject to
Senate confirmation. The Director is
to organize U.S. resources into a
single drug control strategy at the
national level. Within 180 days of his
or her confirmation, the Director
must submit to Congress a "compre-
hensive, research-based, long-range
' plan" for reducing drug abuse in the
United States. The plan must balance
resources between reductions in
supply and demand, must review

state and local drug control activities
to facilitate coordination at all levels,
and must organize compatible auto-
mated information and communica-
tion systems among federal and
other agencies. The Act requires the
Director to submit yearly plans to
implement the national strategy, and
each plan submitted in the second
and subsequent years shall evaluate
the preceding plan's effectiveness.

Within a year of appointment, the
Director shall submit a Justice De-
partment reorganization plan, tar-
geting these elements of the Crimi-
nal Division: the Organized Crime
and Racketeering Section and all the
strike forces; the Narcotics and Dan-
gerous Drugs Section; the Asset For-
feiture Office; and the Organized
Crime Drug Enforcement Task Force
Program.

By Jan. 15, 1990, the Director
must recommend to the President
and Congress a plan for reorganiz-
ing other existing federal agencies

Rules Committee to Suggest

Model Local Rules and Forms

for U.S. District Courts

The Judicial Conference of the
United States Standing Commit-
tee on Rules of Practice and Proce-
dure will review recommenda-
tions of its Local Rules Project at a
meeting to be held in San Fran-
cisco Jan. 19-20, 1989, announced
Judge Joseph F. Weis, Jr. (3d Cir.),
Chairman. The Project will sug-
gest, in addition to a uniform
numbering system, some model
local rules, illustrative forms, and
other possible methods of reduc-
ing and simplifying local rules.
Soon thereafter, the Committee
plans to send the results of the
Local Rules Project's study to each
district court for information and
comments. Judge Weis suggested
that district courts that have be-
gun a review of their local rules
and those that contemplate doing
so in the next few weeks might
wish to await the Committee's
report before proceeding on a
review of their local rules.

for greater efficacy in reducing ille-
gal drug supply and demand.

The Director is to designate high-
intensity drug trafficking areas and
provide federal assistance to the
areas. By Mar. 1, 1991, he or she is to
report to Congress the utility of such
designations and the allocation of
federal assistance to those areas,
along with comments and any rec-
ommendations for legislation. The
Director's broad authority includes
power to review other agencies'
staffing and budgets for adherence
to the national strategy (agencies
may appeal disapprovals to the
President). The Director will report
quarterly to Congress on needed
programs or funds transfers. In
presidential budgetary submissions
to Congress, each requested appro-
priation for the Office of National
Drug Control Policy and other pro-
grams is to be designated separately.

See ANTI-DRUG ABUSE ACT, p. 6

December 1988

theTHTRE branch

Tersonnel

CIRCUIT JUDGES
Death

J. Skelly Wright, D.C., Aug. 6

DISTRICT JUDGES
Appointment

Alex Munson, D. N. Mar. I., Nov. 18

Senior Status

Almeric L. Christian, D.V.I., May 15

Scott Reed, E.D. Ky, Aug 1

Alfred Laureta, D. N. Mar. I., Nov. 19

Deaths

George Templar, D. Kan., Aug. 5
M. Joseph Blumenfeld, D. Conn.,
Nov. 5

BANKRUPTCY JUDGES
Appointments

Kathleen P. March, S.D. Cal., Nov. 10
J. Vincent Aug, Jr., S.D. Ohio, Dec. 1

Pictured above with President Reagan at the White House Sept. 21 are, left to right,
Bankr. Judge William E. Anderson, W.D.Va.; Chief Bankr. Judge George C. Paine, II,
M.D. Tenn.; President Reagan; Chief Bankr. Judge Charles N. Clevert, D. Wis.; and
Chief Bankr. Judge Conrad B. Duberstein, E.D.N.Y. The bankruptcy judges discussed
with President Reagan recent legislation and the current status and problems of the
bankruptcy courts.

HE OURCE

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
mailing label, preferably franked (but do not
send an envelope), and addressed to Federal
Judicial Center, 1520 H St., N.W., Washing-
ton, DC 20005.

Barber, Sotirios A. "Judicial Review
and The Federalist." 55 University of Chi-
cago L. Rev. 836 (1988).

Burnett, Arthur L., Sr. "U.S. Claims
Court Practice," in Intellectual Property
Counseling & Litigation, ch. 107 (Matthew
Bender & Co., 1988).

Copple, Robert F. "From the Cloister
to the Street: Judicial Ethics and Public
Expression." 64 Denver University L. Rev.
549 (1988)

Eisenhower, James J., III. "Four
Theories of Precedent and Its Role in
Judicial Decisions." 61 Temple L. Rev. 871
(1988).

Everett, Robinson O. "FBA Fourth
Circuit Conference Keynote Address."
35 Federal Bar News & J. 356 (1988).

Fratcher, William F. "The Independ-

1989 Circuit Conferences

First

Nov. 13-15

Newport, RI

Second

Sept. 7-9

Lake George, NY

Third

Sept. 10-12

Pittsburgh, PA

Fourth

June 29-July 1

Hot Springs, VA

Fifth

May 7-10

New Orleans, LA

Sixth

May 10-12

Lexington, KY

Seventh

Apr. 30-May 2

Chicago, IL

Eighth

July 18-21

Minneapolis, MN

Ninth

July 9-14

Laguna Niguel, CA

Tenth

Sept. 6-8

Santa Fe, NM

Eleventh

May 7-10

New Orleans, LA

D.C.

June 4-6

Washington, DC

Federal

May 23

Washington, DC

ence of the Judiciary under the
Constitution of 1787." 53 Missouri L. Rev.
1 (1988).

Hutton, Mary Christine. "The
Unique Perspective of Justice White.r
Separation of Powers, Standing and Sec- -
tion 1983 Cases." 40 Administrative L. Rev.
377 (1988).

Kastenmeier, Robert W. "Let Ideas
nourish: How We Can Improve Our
Justice System." 72 Judicature 122 (1988).

Lay, Donald P. Remarks at the
Eighth Circuit Judicial Conference (July
14, 1988).

Luneberg, William V. "Petitioning
Federal Agencies for Rulemaking: An
Overview of Administrative and Judicial
Practice and Some Recommendations for
Improvement." 1988 Wisconsin L. Rev. 1.

MacManus, Sheila. "Center Surveys
JCO Complaint Disposition, Budget and
Staff for 1986." 10 Judicial Conduct Rep. 1
(1988).

Posner, Richard A. Law and
Literature. (Harvard Univ. Press 1988).

Wald, Patricia M., Mary McGowan
Davis, Daniel J. Meltzer, John H. Picker-
ing, and Newton N. Minow. "In Memo-
riam: Carl McGowan." 82 Northwestern
University L. Rev. 213 (1988).

White, Byron R., Bernard G. Segal,
George Clemon Freeman, Jr., David L^
Westin. "Tributes to Associate Justice*
Lewis F. Powell, Jr. on the Occasion of
His Retirement." Supreme Court Historical
Society Yearbook 1987 1 (Summer 1987).

December 1988

BULLETIN OF THE
FEDERAL COURTS

Noteworthy

Record numbers on parole or
probation. The Justice Department
has revealed that in 1987 the total of
persons on probation or parole
reached a record high of 2.6 million.
Adults in the custody of a govern-
mental entity, including those in
federal, state, or local prisons and
jails, numbered 3.4 million, or al-
most 2 percent of the nation's popu-
lation. Three-fourths of these are
being supervised in the community
and about one-fourth are incarcer-
ated.

Geographic differences were
noted in probation growth patterns,
with the Midwest leading in proba-
tioners with 8.7 percent, followed by
the West with 8.6 percent, the North-
east with 5.7 percent, and the South
with 3.8 percent. The federal proba-
tion population increase was 4.6
percent.

Parolee increases also varied geo-
p-aphically, with the West leading
with 21.7 percent, followed by the
South with 13.8 percent, the Mid-
west with 7.9 percent, and the
Northeast with 3.1 percent. Texas
and California had almost one-half
the national increase in parolees. The
federal parole population rose 6.2
percent.

The percentage of offenders re-
leased from state prisons on discre-
tionary parole board decisions de-
clined from 72 pjercent in 1977 to 41
percent in 1987, with an additional
31 percent of 1987 dischargees serv-
ing a period of supervision in the
community

Second Circuit Committee re-
ports on ADR. The Second Circuit
Standing Committee on the Im-
provement of Civil Litigation, ap-
pointed by Chief Judge Wilfred
Feinberg in 1986 and chaired by
Standish Forde Medina, Jr., issued
its rep)ort on "Settlement Practices in
)\e Second Circuit" on Oct. 13. The
Committee reported three conclu-
sions: First, ADR techniques, raised
at the right time, could assist parties
in satisfactorily settling their dis-

putes with less exf>ense and delay
than could proceeding to trial; sec-
ond, judges have to educate litigants
to get them to use ADR procedures;
third, few judges have used or rec-
ommended the use of ADR mecha-
nisms despite the effectiveness of
such techniques.

The Committee report recom-
mends that federal trial judges in the
circuit make greater use of ADR
techniques and that the judges be-
come actively involved in educating
parties about the availability of ADR
processes. The Committee had four
suggestions aimed at resolving these
concerns: (1) that every judge raise
the issue of settlement with the par-
ties, offering the court's assistance
and encouraging serious discus-
sions, early and often thereafter, and
shaping discovery to facilitate such
discussions; (2) that every judge
routinely advise litigants early in
every civil case about the ADR pro-
cedures available to them, such as
mini trials and summary jury trials,
and distribute suggested guidelines
and forms to use with the ADR

Calendar

Dec. 5-6 Judicial Conference Committee
on Administration of the Magistrates
System

Dec. 12-13 Orientation for New Assis-
tant Federal Defenders

Dec. 12-13 Judicial Conference Commit-
tee on Court Security

Dec. 12-13 Judicial Conference Commit-
tee on the Administrative Office

Dec. 12-13 Judicial Conference Commit-
tee on Judicial Resources

Dec. 12-13 Judicial Conference Commit-
tee on Judicial Improvements

Dec. 12-13 Judicial Conference Commit-
tee on the Bicentennial of the
Constitution

procedures; (3) that there be formed
a working group system of four to
six judges, meeting regularly to co-
ordinate their caseloads and discuss
solutions to court operation prob-
lems; (4) that the Second Circuit
Judicial Council consider a one-day
retreat to encourage discussions of
settlement techniques and related
issues. ■

Positions Available

Director, Office of SUff AHomeys, 9th Cir.

Supervises 50 employees, ircludirg 37 staff
attorneys. Responsible for prebriefing
conferences, coordinating motions practice,
preparing case memoranda, drafting
dispositions, and evaluating incoming cases.
Requires 5 years legal experience; academic or
court experience is preferred. Salary range
begins at $57,158. Women and minority
candidates encouraged to apply. For
information call (415) 556-7361. Begins fall 1989.
R6sume to Dinah Shelton, Director, Office of
Staff Attorneys, U.S. Court of Appeals, P.O. Box
547, San Francisco, CA 94101.

Oerk, Bankr. Ct, S.D. Ind. Requires 10
years progressively responsible administrative
experience, at least three in position of substan-
tial management responsibility. Active law
practice may substitute on year for year basis,
and education may substitute for experience as
follovi's: bachelor's degree equals three years;
postgraduate degree in public, business, or
judicial adnunistration equals one additional
year; law degree equals two additional years.
Law degree, legal practice, and trjiining or expe-
rience in judicial administration highly desir-
able. Salary from $46,679. Send four sets of
resume and cover letter by Dec. 31 to Chief
Bankruptcy Judge Robert L. Bayt, Room 31 7- A,
U.S. Courthouse, 46 E. Ohio St., Indianapolis,
IN 46204.

Clerk, Bankr. Ct., W.D. Mich. Manages office
under direction of the Chief Judge. Requires 10
years progressively responsible administrative
experience in public service or business, three
with substantial management responsibiUty.
Bachelor's degree may substitute for three years;
postgraduate degree in public, business, or
judicial administration for one additional year;
law degree for two additional years; and legal
practice experience substituted year for year.
Salary from $54,907. Resume by Jan. 10, 1989, to
Sheila Kooistra, U.S. Bankruptcy Court, P.O. Box
3310, Grand Rapids, MI 49501.

Asst. Reporter of Decisions, U.S. Supreme
Court. Assists Reporter in preparing the U.S.
Reports for puhlication and in supervising 8-per-
son staff. Writes syllabuses; edits opinions for
accuracy, format, and style; prepares indexes;
and reads page proofs for editorial changes. Law
degree; three years lawbook publishing experi-
ence, particularly at managerial level; thorough
knowledge of federal and state law, legal re-
search methods, and English grammar, punctua-
tion, and spelling; and a demonstrated aptitude
for legal writing are all required. Admission to a
state bar, 5 years practical legal experience, and
familiarity with computerized printing desirable.
Salary SCP 13 to 15, depending on qualifications.
Qosing date Jan. 13, 1989. Send SF-171 to Person-
nel Office, Supreme Court of the United States,
Washington, DC 20543. Tel. C02) 479-3404.

EQUAL OPPORTUNITY EMPLOYERS

December 1988

THE THIRD BRANCH

VETERANS APPEALS COURT, from p. 1

conclusions, and rules and regula-
tions of the Administrator, the
Board, and the Board Chairman and
to set them aside if found to be arbi-
trary, unconstitutional, extrajurisdic-
tional, in excess of authority, or not
in conformity with procedure.

The record will be the only basis
for review. Trial de novo is not avail-
able. When a final decision of the
Board is based solely upon the fail-
ure of the claimant to comply with
regulations, the Court of Veterans
Appeals can review only the validity
of the regulation and the compliance
issue. The schedule of ratings for
disabilities adopted under § 355 of
the Act is not reviewable on appeal.

Appellants may have counsel
represent them before the court pur-
suant to rules of practice to be estab-
lished, but fee agreements must be
filed with the court when the appeal
is filed. The court may review the fee
agreement and affirm or issue an
unappealable order for reduction.

The court will have contempt
authority, with power to sanction
via fines and imprisonment, and the
same enforcement power over its
orders and processes as other federal
courts. All proceedings and records,
except those found by the court to be
confidential, shall be public records.

Appeals by parties adversely af-
fected by final orders require filing a

notice of appeal with the court
within 120 days of mailing of the
notice of the decision contested. The
General Counsel's Office will repre-
sent the Administrator and defend
appeals of decisions of the Board.

The Court of Veterans Appeals is
to include in its decisions conclu-
sions of law and findings of fact.
Appeals may be heard by single
judges or by panels, and in the event
of a single-judge decision, the ag-
grieved party or the court may gain
panel review of the decision upon
motion. Decisions of the court be-
come final upon running of the time
for filing notice of appeal or, if notice
is filed, upon running of the time to
pursue the matter to conclusion.

The Federal Circuit has exclusive
jurisdiction to review decisions of
the court on questions of law and
interpretation underlying the court's
decisions, and intermediate control-
ling questions of law and interpreta-
tion in disagreement may be heard
on interlocutory appeals. However,
except for constitutional challenges,
review of factual determinations or
of law or regulations applied to the
facts of a particular case are fore-
closed. Otherwise, rules for review
of decisions of the court shall be
those prescribed by the Supreme
Court under 28 U.S.C. § 2072.

The President is to nominate the
chief judge of the Court of Veterans

Appeals, subject to confirmation by
the Senate, between Jan. 21 and Apjg
1, 1989. After Feb. 1, 1989, the Presi
dent may nominate two to six asso-
ciate judges.

The Court of Veterans Appeals is
an Article I court, with judges' terms
of office set at 15 years and their
compensation the same as U.S. dis-
trict court judges. The chief judge is
designated to head the court and to
receive the same pay as judges of the
U.S. courts of appeals.

Locating facilities for the new
court is delegated to the Administra-
tive Office, which is to consider the
library, equipment, and personnel
requirements plus resources avail-
able for shared use with other fed-
eral courts and agencies.

The Act amends provisions per-
taining to the appointment of the
Board of Veterans' Appeals; they
now provide for appointment of the
Board Chairman by the President
with the consent of the Senate and
the appointment of members of the
Board by the Administrator with th/
approval of the President, to 9-year
terms of office (staggered initially).
The Board will avail claimants of
hearing opportunities and shall base
decisions upon the entire record.

Other provisions are effective
Sept. 1, 1989, unless otherwise noted,
and concern matters other than judi-
cial review of benefit claims. ■

ANTI-DRUG ABUSE ACT, from p. 3

The Act also directs the Attorney
General to ensure that civil statutes
creating ancillary sanctions and
remedies for drug law violations are
given high priority and that in-
creased field office legal and investi-
gative staff are deployed. The Asso-
ciate Attorney General is given re-
sponsibility for implementation,
with an additional $6 million for
salaries and expenses appropriated
for the purpose, half earmarked for
the U.S. attorneys.

The National Drug Enforcement
Policy Board and White House Of-
fice of Drug Abuse Policy arc termi-

December 1988

nated; the National Narcotics Act of
1984 is repealed.

Treatment and prevention
programs. $1.5 million of the revised
and extended alcohol, drug abuse,
and mental health services block
grants ($1.5 billion for FY89) allotted
to the states on a demographic basis
is authorized for law enforcement
and judicial training. The Act pro-
motes prevention and treatment of
addiction, with set asides for treat-
ment of women, children, and intra-
venous drug users. One goal is re-
duced waiting periods for treatment
of alcohol and drug dependencies;
another is testing model programs

for pregnant women and women
with infants. Special arrangements
are provided for programs spon-
sored by the military and the Veter-
ans Administration, for private sec-
tor employer, and for Native Ameri-
cans. Funds under these provisions
are not to be used to distribute or to
clean needles or for basic AIDS re-
search.

User accountability. Convicted
possessors of and traffickers in con-
trolled substances can be denie^
federal benefits at a court's discrif
Hon, including licenses, contracts,
loans or grants (but not including

See ANTI-DRUG ABUSE ACT, p. 7

BULLETIN OF THE
FEDERAL COURTS

VNTI-DRUG ABUSE ACT, from p. 6

eterans', retirement, or Social Secu-
ity benefits, welfare or disability, or
obligations to Indians or Indian
jibes). Federal contractors and grant
■ecipients will have to comply with a
-lew definition of "responsible
jource" under the Drug-Free
Workplace Act of 1988, which man-
dates security, education, and sanc-
:ions for {personnel who commit
irug-abuse violations. Contractors
md grantees who do not comply
risk suspension, termination, or
debarment. HUD grants for public
riousing are directed toward provid-
ing a drug-free environment, with
enhanced security and education
programs for management and ten-
ints.

Money laundering. Money laun-
dering controls were strengthened in
the following ways: Businesses de-
scribed by the Bank Secrecy Act, 31
U.S.C. § 5312(a)(2), as similar to fi-
nancial institutions and under that
\ct's control now include those in-
volved in vehicle, airplane, and boat
sales and in real estate closings and
settlements; the U.S. Postal Service;
and any other business or agency
that the Treasury adds by regulation
whose cash transactions have a high
degree of usefulness in criminal, tax,
Dr regulatory matters. Another
change facilitates prosecution for
money laundering operations in
which the target funds are in fact
provided by law enforcement as part
of an investigation. The Postal Serv-
ice is authorized to investigate
money laundering in cooperation
with Justice and the Treasury.

Death penalty, other criminal
and law enforcement matters. Two
categories of defendants will face
possible death penalties: those who
kill as part of drug-related transac-
tions and those who kill law enforce-
ment officers during drug-trafficking
activities. The death penalty is fore-
Mosed to defendants who were
^nder 18 when the crime was com-
mitted and to the mentally retarded
or those who are unable to under-
stand critical facts in the context of

the circumstances or who are unable
to convey that information to coun-
sel or the court.

The jury, or the court in a non-
jury trial, considering applying the
death penalty must, in each case,
issue findings on aggravating and
mitigating factors. Aggravation must
be found unanimously and beyond a
reasonable doubt and may include
such factors as defendant's prior
criminal record, the brutality of the
instant crime, whether the defendant
was paid or paid another to commit
the killing, whether the defendant
intentionally killed the victim, and
whether the defendant inflicted seri-
ous bodily harm on the victim. The
existence of a mitigating factor may
be established upon the finding of a
single juror. Mihgating factors need
only be proved by a preponderance
of the evidence; aggravation must be
weighed against mitigation. Even if
there are no mitigating factors, any
aggravation must be considered to
determine if death is appropriate.
Jurors must certify that the penalty
was determined without regard to
race, color, religion, national origin,
or gender of the defendant or victim.

Guidelines require that well-
qualified counsel are provided to
indigent defendants for all stages of
trial and appeal.

All death penalty cases are sub-
ject to review by the courts of ap-
peals.

For defendants subject to the
death penalty on whom the penalty
is not imposed, the sentence range is
20 years to life imprisonment with-
out the possibility of parole (amend-
ing 21 U.S.C. § 841).

The Act provides a mandatory
life sentence for anyone convicted of
a third felony drug offense, and re-
lated sections enhance penalties for
offenses involving children or cir-
cumstances in which children were
placed at risk of exposure to illegal
drugs.

Supplemental appropriations.
For the judiciary, judicial services
salaries and expenses, $35 million;
for defender services, $15 million;

THE BOARD OF THE
FEDERAL JUDICIAL CENTER

Chairman

The Chief Justice
of the United States

Judge Alvin B. Rubin

United States Court of Appeals

for the Fifth Circuit

Judge J. Clifford Wallace

United States Court of Appeals

for the Ninth Circuit

Judge Jose A. Cabranes

United States District Court

District of Connecticut

Chief Judge William C. O'Kelley
United States District Court
Northern Distrtict of Georgia

Judge David D. Dowd, Jr.

United States District Court

Northern District of Ohio

Judge Robert E. Ginsberg

United States Bankruptcy Court

Northern District of Illinois

L. Ralph Mecham, Director

Administrative Office of the

United States Courts

Federal Judicial Center

Judge John C. Godbold, Director

Charles W. Nihan, Deputy Director

for fees of jurors and commissioners,
$1 million. For associated programs:
$7 million in salaries and expenses to
the Bureau of Alcohol, Tobacco and
Firearms; $8.5 million for the U.S.
Customs Service salaries and ex-
penses, and $7 million for operation
and maintenance of the Air Interdic-
tion Program; and $3.5 million for
salaries and expenses for the new
Office of National Drug Control
Policy.

The AO is preparing a short
summary of pertinent parts of the
Anti-Drug Abuse Act of 1988 for
distribution. ■

December 1988

'iiiOtiaovxaiA^4

THE THIRD BRANCH

QUADRENNIAL COMMISSION, from p. 1

and homes still mortgaged, not hav-
ing had time to accumulate assets —
particularly felt the need to recon-
sider a long-term commitment to the
federal bench.

Philip W. Tone, President of the
American College of Trial Lawyers
and former judge of the Seventh
Circuit, responded to Commission
Chairman Lloyd N. Cutler's invita-
tion to address three specific topics:
(1) how judicial salaries and benefits
compare with those at comparable
private sector levels, (2) how judicial
salaries and benefits have an impact
on judicial morale and willingness to
serve for life, and (3) permissible
outside income-producing activities.
As to salary comparability, Mr. Tone
stated that there is a "dramatic dif-
ference" between judicial salaries
and benefits and those for commen-
surate positions and a similar dis-
parity in important collateral bene-
fits (e.g., life insurance and survi-
vors' benefits). He pointed out that
private sector lawyers can utilize
higher incomes and tax-deferred
savings to amass substantial estates,
while "the typical judge has little but
his salary when he reaches retire-
ment age," and the retirement costs
must be paid by the judge. Mr. Tone
discussed morale implications.

which he described as severe; judges
cannot fail to know how much more
their contemporaries and own for-
mer law clerks earn in the private
sector, and while they cannot expect
to earn that much, they have a right
to compensation reflecting the rela-
tive responsibility and importance to
society of their contributions and
their positions. Mr. Tone described
low morale as a deterrent to obtain-
ing and retaining the best lawyers
for the federal bench. As to outside
income, permissible sources are es-
sentially teaching and writing, with
"slim" remuneration. The caseload
generally leaves no time or energy
for such activities, and federal
judges should not be dependent
upon supplemental income.

James C. Miller III, past Director
of the Office of Management and
Budget, testified that most agencies
could absorb the additional salaries
costs he advocated in present budg-
etary configurations. He said that
the additional costs would be quite
modest compared with the total
federal budget or even the amount
spent for compensation, being on the
order of a third of a billion dollars
annually. His view was that by rais-
ing compensation government could
attract and retain the best people
and that the value received would

far exceed the cost.

Many of the witnesses referred to m
the steadily rising rate of resigna- '
tions from the federal bench, some-
thing once quite rare, and noted that
more judges had resigned during the
past 20 years than in the preceding
180 years. Judge Robert H. Hall
(N.D. Ga.), President of the Federal
Judges Association, said that he was
concerned that continuation of the
trend could lead to the federal judi-
ciary becoming "a mere stepping
stone" to a prestigious law firm
partnership at several multiples of
the judicial salary.

All testified in support of sub-
stantial increases in base compensa-
tion, from $135,000 to $150,000 for
district court and special court
judges to more than $200,000 for the
Chief Justice. They also called for
significant improvements in ancil-
lary and survivors benefits, includ-
ing payment of those costs by the
government rather than the judge.

The Commission will report its
findings and recommendations to
the President this month. He can
accept or modify them, and he is to
forward recommendations to the
Congress on Jan. 9, 1989. His propos-
als will take effect automatically in
30 days unless both houses of Con-
gress reject them. ■

BULLETIN OF 7HE FEDERAL COURTS

THElJrllKL BRANCH

Vol. 20 No. 12 December 1988

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

First
Class
Mail

Postage and

fees paid

United States

Courts

Official Business

U.S. GOVERNMENT PRINTING OFRCE 1988-241-150-80010

iilii

(

"°^^'™»™irrriniTirTi""- " - •'

■ II^MIIIIIIllllllljIIIIIK'U"

^mm%

Internet Archive Audio

Featured

Top

Images

Featured

Top

Software

Featured

Top

Books

Featured

Top

Video

Featured

Top

Mobile Apps

Browser Extensions

Archive-It Subscription

Save Page Now

Full text of "The third branch"

See other formats