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Judicature [Report to Members and List of Donors]

Date: Oct 1986
Length: 67 pages
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American Bar Assn
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American Judicature Society
Author
Mudrick, D.P.
Toppins, R.K.
Sullivan, J.A.
Doyle, J.T.
Polansky, L.P.
Grimit, R.T.
Adams, A.M.
Smith, C.E.
Miller, B.K.
Devins, N.E.
Nase, J.P.
Kritzer, H.M.
Kleiman, B.S.
Maccoun, R.J.
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Nov 1986
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Chauvin, S.
Raven, R.D.
Williams, G.H.
Richert, D.
Burnham, D.
Ballwanz, J.
Kowalski, S.J.
Sampson, K.
Shaman, J.M.
Lyon, M.
Begue, Y.
Gewerth, K.E.
Hayden, J.
Stevenson, G.
Wells, C.
Garner, E.
Nicholson, M.
Parness, J.
Cohen, F.
Reiter, J.
Ward, G.
Weaver, M.
Halpin, K.
Houston, S.
Joseph, J.
Lewis, C.
Stanford, J.
Wilson, R.
Adams, A.M.
Smith, C.E.
Miller, B.K.
Devins, N.E.
Nase, J.P.
Kritzer, H.M.
Kaye, J.S. 1
Green, D.M.
Keyes, M.F.
Kleiman, B.S.
Maccoun, R.J.
Wishman, S.
Hans, V.P.
Vidmar, N.
Simon, P.
Carter, J.
Mondale, W.
Roosevelt, F.
Biden, S.
Meese, E.
Rehnquist
Bird, R.
Culver
Glick
Emmert
Reagan
Nihan, C.W. 2
Hamilton, A.
Marbury
Madison
Bryce
Claiborne, H.E.
Cooper
Pate
Horowitz
Glazer
Walker
Taylor
Ruffin
Banning
Looney
Bell
Wolfish
Russell
Parratt
Bodner
Johnson
Avery
Fulwood
Clemmer
Wolff
Mcdonnell
Lee
Downs
Hewitt
Helms
Jacobs
Ruiz
Estelle
Rhodes
Chapman
Gamble
Pugh
Locke
Finney
Mabry
Yarbrough
Ely, J.H.
Spiller
Horgan
Harriman
Straussman
Kendrick
Bland
Hoptowit
Spellman
Baker
Carr
Robbins
Bronstein
Heckler
Mathews
Liberta
Wachtler
Califano
Goldfarb
Howe, B.
Hood
Webb
Truman
Green
Swann
Bivens
Carlson
Tribe, L.H.
Higginbotham, P.
Kaufman
Vining, J.
Hoffman, R.B.
Gillespie
Meador
Edwards
Johnsen, R.A.
Heydebrand
Carrington
Chayes
Aldisert
Watson
Bedlin
Nejelski
Alschuler
Mcthenia
Shaffer
Mnookin
Kornhauser
Cavanagh
Kaye, J.S. 3
Cuomo, M.
Cox, A.
Rafshoon, L.
Mccarthy
Penn, W.
Lockhart
Mccree
Kalman
Blasi, V.
Frankfurter
Williams, G.
Carpenter, E.N.
Mckay, R.B.
Myers, R.D.
Henry Woe
Rinaman, J.C.
Holdman, S.
Mccurdy, J.A.
England, A.J.
Kerr, E.T.
Luongo, A.L.
Markey, H.
Oviatt, R.H.
Phillips, H.
Snow, C.
Waugh, A.P.
Sulmonetti, A.T.
Harley, H.L.
Frazza, G.S.
Abrahamson, S.
Simon, R.
Monahan, P.J.
Bauer, W.J.
Schafran, L.H.
Pe, C.
Abramson, L.W.
Rosenblum, V.G.
Civiletti, B.R.
Murphy, D.E.
Nygren, K.F.
Crawford, W.W.
Utter, R.F.
Cochran, M.L.
Toll, M.J.
Bierman, M.H.
Carrigan, J.R.
Gee, G.E.
Pringle, E.E.
Steele, W.A.
Greenfield, J.R.
Battaglia, V.F.
Biondi, F.O.
Hawkins, S.V.
Brooksley, E.
Kessler, G.
Levin, L.
Barnett, M.W.
Kerr, A.L.
Petrey, R.N.
Richman, G.F.
Robertson, J.E.
Rush, F.G.
Strawn, D.U.
Fitzpatrick, R.
Huie, S.W.
Mayoue, J.C.
Okinaga, L.S.
Hurlbutt, D.C.
Snyder, G.C.
Reynoldson, W.W.
Sievert, F.H.
Simon, L.P.
Cole, G.G.
Winter, H.L.
Curtin, J.J.
Fisher, F.G.
Hammer, R.A.
Clark, J.S.
Darlow, J.D.
Teitelman, R.B.
Hewitt, J.W.
Manoukian, N.E.
Batchelder, W.F.
Pollock, S.G.
Skinner, R.S.
Hoffberg, D.L.
Maccrate, R.
Marshall, E.G.
Robb, L.T.
Medd, J.D.
Webster, N.R.
Hieronymus, E.D.
Titus, P.H.
Greenhill, J.R.
Harrell, M.
Tartt, B.
Durham, C.M.
Chappell, R.H.
Lateef, N.V.
Lawson, T.T.
Prince, W.T.
Andrews, D.J.
Heizer, R.E.
UCSF Legacy ID
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Annotations

1. Kaye, J.S. Named Person
  • Affiliation:

    Ajs

2. Nihan, C.W. Named Person
  • Affiliation:

    Judicial Fellows Commission

3. Kaye, J.S. Named Person
  • Affiliation:

    Ajs

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Page 1: jps32f00
NO POSTAGE NECESSARY IF MAILED IN THE UNITED STATES BUSINESS REPLY CARD FIRST CLASS PERMIT No. 48475 CHICAGO. ILLINOIS POSTAGE WILL BE PAID BY AMERICAN JUDICATURE SOCIETY Membership Department 25 E. Washington, Suite 1600 Chicago, Illinois 60602 TITX 0022273
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0 I have talked with the individual(s) below and he/she has agreed to join AJS. Please send appropriate materials. Name Address City State Zip Name Address City State Zip Your name Address City State Zip TITX 0022272
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judicature THE JOURNAL OF THE AMERICAN JUDICATURE SOCIETY OCTOBER-NOVEMBER 1986 VOL 70/NO 3 140 Letters Arlin M. Adams 142 Query Who will control the judiciary? Christopher E. Smith 144 Federal judges' role in prisoner litigation: What's necessary? What's proper? Bruce K. Miller and 151 Constitutional rights without remedies: judicial Neal E. Devins review of underinclusive legislation Jonathan P;vase 157 The growth of the federal judicial labor force: a budget-based perspective Herbert M. Kritzer 161 Adjudication to settlement: shading in the gray Judith S. Kaye 166 My "freshman years" on the court of appeals 168 Focus Dale M. Green and Motion on the merits: an effective response to appellate Michael F. Keyes congestion and delay Bonnie S. Kleiman A step forward: Tulsa's precourt hearing program 172 Books Robert J. MacCoun Anatomy of a Jury: The System on Trial, by Seymour Wishman and Judging the Jury, by Valerie P. Hans and Neil Vidmar 177 Report to the members and Honor roll of donors J UD ICATURE. The Jou rnal of the American Judicatu re Society (I SSN 0022-5800 ). Volume 70, Nu mber 3, October-November. Published bi-monthly. Circulation 24,000. Individual subscriptions $18.00 a year; single issues, $3. Views and opinions in articles are not to be taken as official expressions of the American Judicature Society's policy unless so stated. Copyright 01988 by the American J udicature Society. Up to 25 photocopies of individual articles may be made without permission. These must be used exclusively for educational purposes, with no direct or indirect commercial advantage, and must include a notice COVER DESIGN ofcopyrighl.Addresschanges,editoriatcommunicationsandnoticesonForm3579aretobesentto25EastWashington, Suite JOANN BALLWANZ 1600, Chicago, Illinois 60602. TITX 0022274
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_& Letters The advice and consent role Senator Paul Simon's article ("The Sen- ate's role in judicial appointments," June-July, 1986) told us less about the quality of President Reagan's judicial nominees than about the tactics of those who oppose them. The liberal Simon professes indigna- tion that the president intends to nomi- nate judges who "share his judicial views." The senator confides that "like many others" (not enough to elect Mon- dale President, obviously), he has be- come "troubled by the ideological bent" of the nominees. In fact, the President is surprising no one. He is simply fulfilling his campaign pledge to nominate "strict construction- ists" to the courts. Of course he wants to nominate judges who share his views. In that respect, he is no more or less partisan or ideological than his predecessors. What has changed is the approach of the opposition. They are trying to mis- lead the public into believing that it is improper and unprecedented for a presi- dent to nominate according to judicial and political ideology. They know bet- ter. That type approach does not fall into the traditional "advice and consent" role. Senators like Simon and Kennedy are not "advising" and "consenting." Rath- er, they are trying to repeal the sweeping mandates pf two presidential elections. David P. Mudrick Topeka, Kansas Sour grapes With reference to Senator Paul Simon's article, they sure grow big and j uicy sour grapes in Illinois. At least the Senator is honest. He says he is concerned "about the j udicial nom- inations that have been made" since he joined the Senate and is concerned about "their ideological bent." He wants the power to scrutinize Reagan j udicial nom- inees' ideological views and reject a nominee if, I suppose, the nominee's ideological views conflict with the views of a majority of the Senate. That's fine and dandy, I guess, so long as the next time a Jimmy Carter or Walter Mondale or Franklin Roosevelt is elected, Sena- tors Simon, Biden, et al., remember what they're saying now. Roger K. Toppins Jefferson City, Missouri Judicial Fellows Program Young professionals interested in judi- cial administration are invited to apply for the 1987-88 Judicial Fellows Pro- gram. Fellows will be chosen by a na- tional commission to work at the Su- preme Court in the Office of the Adminis- trative Assistant to the Chief Justice, the Federal Judicial Center, or the Adminis- trative Office of the United States Courts. Candidates should have at least one post-graduate degree, at least two years of professional experience, and preferably, some familiarity with the federal judicial system. Stipends for the Fellowship are based on salary history and comparable government salaries. The 1987-88 Fellow- ships will begin in September of 1987. To ensure consideration applications should be received by December 12, 1986. Selec- tions will be made in January 1987. Application information and litera- ture on the Program are available from Charles W. Nihan, Executive Director of the Judicial Fellows Commission, Fed- eral Judicial Center, 1520 H Street, N.W., Washington, DC 20005. An ironic analogue There is an ironic analogue between the efforts of "conservatives" to throw Rose Bird out, and the efforts of "liberals" to prevent Justice Rehnquist from getting in. The authors of "Rose Bird and the politics of judicial accountability in Cal- ifornia," (August-September, 1986) see a threat to "judicial independence" if Jus- tice Bird is rejected by the electorate because of her "beliefs" on such contro- versial issues as the death penalty, etc. Her opposition, the authors say, comes from the "agricultural interests," and "well-organized, well-financed cam- paigns" by "conservatives" who oppose Bird's retention. She, on the other hand, counts heavily on the support of such percipient groups as "public officials" and "film and television celebrities." Bird depicts her opposition as "right wing bullies" and "the progeny of Eddie Meese," a statement the authors cur- iously attribute to her "lack of expe- rience in campaigning." In significant contrast to the Rehn- quist case, however, the thesis for reten- tion of Bird does not dwell on her quali- fications, experience or contribution to the administration of justice, but rather on the beguiling theme that defeat of Bird will be a blow to "judicial inde- pendence." In brief, they say she faces ouster because of unpopular opinions she has written. Inherent in the right to elect judges, it seems to me, is the right to retain or reject judges for their legal views and philosophy. If that impinges on the inde- pendence of the judiciary, it is a foresee- able consequence of having judges stand for popular election. Concomitantly, however, it strengthens the electorate. If the electorate is not to be trusted with this power, the manner of selecting judges should be changed. This brings - us to the challenge facing "judicial inde- pendence" among non-elected judges. In the Senate Judiciary-media event, Justice Rehnquist's memo-writing, poll- challenging life was scrutinized in what purported to be a concern with his char- acter rather than his legal philosophy. But at the height of the hearings, Tom Wicker, the New York Times syndicated columnist, told his vast audience (and the Senate) that Rehnquist should be rejected on his "voting record alone," i.e., the opinions he had written while on the Court, thus saying out loud what most opponents felt anyway. Without question it was the opinions of Justice Rehnquist that caused "liber- als" to attempt to create a firestorm in the Senate and block him from being chief 140 Judicature Volume 70, Number 3 October-November, 1986 TITX 0022275
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Federal judges' role in prisoner litigation: What's necessary? What's proper? Critics of judicial activism urge judges to leave the running of prisons to corrections professionals. But when those administrators, and the elected officials who appoint them, cause or tolerate constitutional violations, judges must step in. By Christopher E. Smith D ebate over the proper scope of ciary's role in modern society.s Their cases involving imprisoned criminal of- judicial activity periodically public dispute parallels similar disagree- fenders provides a focal point for exa- recaptures a prominent place ments among respected legal scholars mining the propriety of judicial activity. on the national agenda, and and political scientists.s The example of Prisoner litigation may indeed illustrate concerns about the appropriate role of federal judges in prisoner litigation are one component of it. Within the past two decades, the number of petitions and lawsuits filed by state prison inmates in federal courts has more than doubled; filings by state prisoners increased from 11,812 in 1970 to 27,206 in 1985.' In 1985, civil rights suits alone by state prisoners constituted nearly seven per cent of all civil filings in the federal districtcourts.2 Every action within this large and growing volume of litigation represents a request for judicial intervention in state criminal justice procedures or insti- tutions. Each case can raise anew the constitutional issues of federalism and separation of powers involved when a federal judge recognizes rights and orders remedies that affect the operations of state government agencies. Disagreements about the legitimacy of judges' actions stretch from the struggles between the Federalists andAnti-Federal- ists in the nation's earliest years through the controversies over judicial supervi- sion of public schools and mental hospi- tals in recent decades. The debate over the judiciary's proper role in the American governmental system has again reached a prominent place on the national agenda through the public exchange between Attorney General Edwin Meese and Su- preme Court Justices William Brennan and John Paul Stevens.' In that ex- change, Meese maintains that federal courts should practice restraint by inter- preting the Constitution according to the framers' original intentions.4 Justices Brennan and Stevens claim that Meese's theory would improperly alter the judi- TITX 144 Judicature Volume 70, Number 3 October-November, 1986 0022281
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o Query ~ Who will control the judiciary? by Arlin M. Adams T his seems to be an appropriate time for anniversary celebra- tions. A little more than two months ago the nation felici- tiously commemorated the 100th anni- versary of the Statue of Liberty. This month we celebrate the Center For Judi- cial Conduct Organization's 10th na- tional conference. Even more noteworthy is that next year, when we observe the 200th anniversary of the Constitution, we will also mark the 10th anniversary of the Center's founding. There is more of a connection between the birthdays of the Constitution and this Center than may appear at first glance. Reflecting on the Center's work in preparation for this occasion, I came increasingly to view the evolution over the past 25 years of today's judicial con- duct organizations as a form of constitu- tional development. For, as our written Constitution serves to protect citizens against arbitrary rule, so judicial con- duct organizations, created to assure the fitness of our judiciarv, represent an im- portant safeguard against abuse of power. Because of the unprecedented public attention focused in recent years on the problems of our judiciary, these fledg- ling organizations must move decisively and effectively to command public con- fidence. One important step toward achieving this goal, I believe, would be to establish that the press and public are entitled to access to certain critical phases of judicial conduct proceedings. The Framers' goals I shall begin at the beginning. To appre- ciate fully the role that judicial conduct organizations occupy in our governmen t, we must recall the goals of the Framers of the Constitution when, back in the summer of 1787, they met in Philadel- phia. Their mission was to devise a framework of government that would protect future generations against des- potic rule. Toward that end, they crafted a"compound republic," in the sense that powers were divided between the national government and the states, and the power allocated to each government would then be "subdivided among dis- tinct and separate departments"-the ex- ecutive, the legislature, and the judiciary. In his characteristically astringent voice, Alexander Hamilton, a chief archi- tect of this structure, acknowledged that, "it may be a reflection on human nature that such devices should be necessary to control the abuses of government." But, he continued, "what is government it- self, but the greatest of all reflections on man's nature% If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to con- trol the governed, and in the next place, oblige it to control itself." Among the checks and balances de- signed by the Framers to preserve the freedom of the governed, the judicial power soon came to occupy a distinc- tively vital function. To give full effect to the principles set forth in the Constitu- tion and the Bill of Rights, it was neces- sary for the j udicial branch to serve as the final arbiter of the document's meaning. In 1804 the Supreme Court, in Marbury v. Madison, declared that this was the judiciary's prerogative. Ever since then, the judicial power to strike down uncon- stitutional enactments and procedures has been a bulwark against governmen- tal abuses. After the Civil War, the pas- sage of the Fourteenth Amendment as- sured all citizens the right to receive due process of law from the states, as well as the federal government. Over the next 142 Judicature Volume 70, Number 3 October-November, 1986 100 years, the Supreme Court declared that this provision prohibited states from infringing most of the provisions ex- pressly guaranteed against federal gov- ernment interference by the amendments in the Bill of Rights. The subsequent history is familiar to all of you: the decision protecting the First Amendment's freedoms of speech, press, and religion, enforcing the right to counsel in criminal trials under the Sixth Amendment and, of critical im- portance, giving renewed vigor to the right to equal treatment under law gua- ranteed by the Fourteenth Amendment. In the process, the role of the federal judiciary has expanded dramatically- so much so that some commentators speak of an "Imperial Judiciary." State courts have witnessed a parallel growth in importance. The peculiarly American proclivity, observed by de Tocqueville, to turn public controver- sies into legal disputes, has resulted in a vast increase in state court dockets, where the brunt of what is widely referred to as today's "litigation explosion" has been felt most strongly. State courts, moreover, have in recent years grown far more vigorous in interpreting state constitu- tions, often determining that these com- pacts secure rights beyond those assured by the Federal Constitution. Assuring judicial propriety The merits of this growth in judicial power are a subject of considerable de- bate, which I do not intend to join tonight. My only point in drawing on this history is to underline the vast power that our j udiciary wields in oblig- ing the government to control itself-to put it in Hamiltonian terms. And this, in turn, raises the inevitable next ques- tion: who will control the judiciary? How can we ensure that judicial power is being carried out by the honest, the TITX 0022279
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LI Letters The advice and consent role Senator Paul Simon's article ("The Sen- ate's role in judicial appointments," June-July, 1986) told us less about the quality of President Reagan's judicial nominees than about the tactics of those who oppose them. The liberal Simon professes indigna- tion that the president intends to nomi- nate judges who "share his judicial views." The senator confides that "like many others" (not enough to elect Mon- dale President, obviously), he has be- come "troubled by the ideological bent" of the nominees. In fact, the President is surprising no one. He is simply fulfilling his campaign pledge to nominate "strict construction- ists" to the courts. Of course he wants to nominate judges who share his views. In that respect, he is no more or less partisan or ideological than his predecessors. What has changed is the approach of the opposition. They are trying to mis- lead the public into believing that it is improper and unprecedented for a presi- dent to nominate according to judicial and political ideology. They know bet- ter. That type approach does not fall into the traditional "advice and consent" role. Senators like Simon and Kennedy are not "advising" and "consenting." Rath- er, they are trying to repeal the sweeping mandates of two presidential elections. David P. Mudrick Topeka, Kansas Sour grapes With reference to Senator Paul Simon's article, they sure grow big and j uicy sour grapes in Illinois. At least the Senator is honest. He says he is concerned "about the judicial nom- inations that have been made" since he joined the Senate and is concerned about "their ideological bent." He wants the power to scrutinize Reagan j udicial nom- inees' ideological views and reject a nominee if, I suppose, the nominee's ideological views conflict with the views of a majority of the Senate. That's fine and dandy, I guess, so long as the next time a Jimmy Carter or Walter Mondale or Franklin Roosevelt is elected, Sena- tors Simon, Biden, et al., remember what they're saying now. Roger K. Toppins Jefferson City, Missouri Judicial Fellows Program Young professionals interested in judi- cial administration are invited to apply for the 1987-88 Judicial Fellows Pro- gram. Fellows will be chosen by a na- tional commission to work at the Su- preme Court in the Office of the Adminis- trative Assistant to the Chief Justice, the Federal Judicial Center, or the Adminis- trative Office of the United States Courts. Candidates should have at least one post-graduate degree, at least two years of professional experience, and preferably, some familiarity with the federal judicial system. Stipends for the Fellowship are based on salary history and comparable government salaries. The 1987-88 Fellow- ships will begin in September of 1987. To ensure consideration applications should be received by December 12, 1986. Selec- tions will be made in January 1987. Application information and litera- ture on the Program are available from Charles W. Nihan, Executive Director of the Judicial Fellows Commission, Fed- eral Judicial Center, 1520 H Street, N. W., Washington, DC 20005. An ironic analogue There is an ironic analogue between the efforts of "conservatives" to throw Rose Bird out, and the efforts of "liberals" to prevent Justice Rehnquist from getting in. The authors of "Rose Bird and the politics of judicial accountability in Cal- ifornia," (August-September, 1986) see a threat to "judicial independence" if Jus- tice Bird is rejected by the electorate because of her "beliefs" on such contro- versial issues as the death penalty, etc. Her opposition, the authors say, comes from the "agricultural interests," and "well-organized, well-financed cam- paigns" by "conservatives" who oppose Bird's retention. She, on the other hand, counts heavily on the support of such percipient groups as "public officials" and "film and television celebrities." Bird depicts her opposition as "right wing bullies" and "the progeny of Eddie Meese," a statement the authors cur- iously attribute to her "lack of expe- rience in campaigning." In significant contrast to the Rehn- quist case, however, the thesis for reten- tion of Bird does not dwell on her quali- fications, experience or contribution to the administration of justice, but rather on the beguiling theme that defeat of Bird will be a blow to "judicial inde- pendence." In brief, they say she faces ouster because of unpopular opinions she has written. Inherent in the right to elect judges, it seems to me, is the right to retain or reject judges for their legal views and philosophy. If that impinges on the inde- pendence of the judiciary, it is a foresee- able consequence of having j udges stand for popular election. Concomitantly, however, it strengthens the electorate. If the electorate is not to be trusted with this power, the manner of selecting judges should be changed. This brings - us to the challenge facing "j udicial inde- pendence" among non-elected judges. In the Senate Judiciary-media event, Justice Rehnquist's memo-writing, poll- challenging life was scrutinized in what purported to be a concern with his char- acter rather than his legal philosophy. But at the height of the hearings, Tom Wicker, the New York Times syndicated columnist, told his vast audience (and the Senate) that Rehnquist should be rejected on his "voting record alone," i.e., the opinions he had written while on the Court, thus saying out loud what most opponents felt anyway. Without question it was the opinions of Justice Rehnquist that caused "liber- als" to attempt to create a firestorm in the Senate and block him from being chief 140 Judicature Volume 70, Number 3 October-November, 1986 TITX 0022277
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justice. Rose Bird is at the other end of the spectrum. Philosophically, her hall- marks, according to the article, include being "innovative," "activist," and "espe- cially careful" of the rights of civil plain- tiffs and criminal defendants-what some would call a judicial legislator. If we can rely on the polls, there obvi- ously are a lot of people in California who feel Justice Bird has been too innov- ative and too "especially careful" of the rights of one side in lawsuits, and not careful enough of the rights of the other side, including victims of rape. Use of the electoral process to reflect one's disagree- ment with such jurists is no more a threat to "judicial independence" than Senate confirmation hearings are. The threat to influence the electorate by "right wing bullies" seems no greater than the threat to the Senate from "left wing" bullies- with or without syndication. Far from being a threat to "judicial independence," perhaps all a Bird defeat will prove is that she lacked experience in campaigning. Joseph A. Sullivan Detroit, Michigan Independence or accountability? The article by Professors Culver and Wold about Rose Bird (August-Septem- ber, 1986) misidentifies judicial indepen- dence with those like Justice Bird, et ilk, who crassly ignore the statutory laws of the state they have sworn to uphold! They take their deifications (judicial appointments) as a prescription to re- verse all capital cases and many of the lesser criminal convictions as well. You professors, like many other liber- als, envision yourselves at the center of the world with everything and everyone revolving around you. You fell off the merry-go-round years ago, but are still too dizzy to realize that you are no longer at the center of the universe. Ordinary people are sickened by the criminal on- slaught permitted by Bird, et ilk. Cali- fornia is not the only place where you will see that there will be a strong reac- tion to the judicial immorality we have witnessed in the past decade. You gain no sympathy for Justice Bird by striking off her critics as anti-femin- ists. It's unfortunate that Bird denigrates her profession. Would you have her deni- grate her sex as well? She looks very attrac- tive on the cover of Judicature. Why didn't vou use more ink to explore her "politics?" Capital punishment, I'll wager, is not the only issue, nor is her sex. Ripping the critics of Bird's bench does not address the major objection to her, which is her stand against the en- forcement of criminal law and the just punishment of ruthless offenders. No matter how pretty you wrap the package, the odious character of Bird's adminis- tration, witness the Tanner case, has seeped out and turned many noses away, too strong even for California. You cannot label all critics of Bird as conservatives unless you also intend to tag all conservatives as sensitive, caring people who seek the protection of society and the courts against the individual hoodlums who prowl about committing murder, robbery and mischief of every sort. Judicial accountability should have no politics. If Bird and her compatriots cannot measure up, then the rascals should be thrown out. Doyle T. Johns, Jr. District Attorney 13th Judicial District Fort Morgan, Colorado A response to the response After reading Professor Nagel's rebuttal, ("A response to the responses") I am not certain that he understood the comments of the three reactors to his article. ("Sys- tematic assignment of judges: a pro- posal," August-September, 1986.) Professor Nagel's ultimate conclusion is that there (seems) "..o to be agreement among the respondents that the present assignment system is unsystematic..." That is not so. I believe the point of all three responding articles is that there are different ways to effect systematic assign- ment of judges and differing reasons for each way. In addition, although all three approached the issue differently, each arti- cle describes existing systematic processes. I would reiterate, for the record, that the use of today's technology can be quite helpful to the judicial manager in the process of making "systematic assign- ments" but that many very human quali- ties must be taken into consideration along with "production" requirements. The proposal by Professor Nagel does not adequately address the complex optimum assignment problem that chief judges have been solving for many years in large urban courts, and a problem which, I be- lieve, he must analyzee a bit more thor- oughly before proposing a solution. Larry P. Polansky Executive Officer District of Columbia Courts Washington, D.C. More important judicial qualities Although there is obvious merit to the article by Professor Glick and Mr. Em- mert ("Stability and change: characteris- tics of state supreme court judges" Au- gust-September, 1986), I am disappointed with it in two specific respects. The quotation in bold face at the top middle of page 110 is very misleading. The "quote" does not accurately reflect the comments of the authors in that the authors restricted their comment to "in these terms" which referred to the man- ner in which a superior legal education is often "construed." Furthermore, the bias of the authors to private and, in particular, prestigious Ivy League law schools is quite obvious. While no one can debate the clear merits of some of the prestigious Ivy League law schools (Harvard, Yale, Columbia) it is a serious breach of good scholarship and research to limit an evaluation of good legal education to those schools. Along with the prestigious Ivy League schools, there are prestigious public non-Ivy League schools, there are prestigious pub- lic non-Ivy League law schools acknowl- edged to be superior law colleges. To eval- uate judges' educations in terms of atten- dance at prestigious Ivy League schools is very misleading and not really useful. Frankly, I think that AJS would be the first to acknowledge that there are judi- cial qualities far more important than whether the judge attended a private and prestigious law school. The form of elit- ism indicated in this aspect of the article is most unfortunate and not in accor- dance with the usual very high standards of your publication. If nothing else is demonstrated by this letter, it should indicate to you that those who receive the publication do indeed read it. By no means should my critical commen ts on this aspect of one article be considered criticism of the Society or the usual very high quality of the articles contained in the publication. Robert T. Grimit Lincoln, Nebraska (See editor's and authors'response, page 175) TITX 0022276 141
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justice. Rose Bird is at the other end of the spectrum. Philosophically, her hall- marks, according to the article, include being'`innovative," "activist," and "espe- cially careful" of the rights of civil plain- tiffs and criminal defendants-what some would call a judicial legislator. If we can rely on the polls, there obvi- ously are a lot of people in California who feel Justice Bird has been too innov- ative and too "especially careful" of the rights of one side in lawsuits, and not careful enough of the rights of the other side, including victims of rape. Use of the electoral process to reflect one's disagree- ment with such jurists is no more a threat to "judicial independence" than Senate confirmation hearings are. The threat to influence the electorate by "right wing bullies" seems no greater than the threat to the Senate from "left wing" bullies- with or without syndication. Far from being a threat to "judicial independence," perhaps all a Bird defeat will prove is that she lacked experience in campaigning. Joseph A. Sullivan Detroit, Michigan Independence or accountability? The article by Professors Culver and Wold about Rose Bird (August-Septem- ber, 1986) misidentifies judicial indepen- dence with those like Justice Bird, et ilk, who crassly ignore the statutory laws of the state they have sworn to uphold! They take their deifications (judicial appointments) as a prescription to re- verse all capital cases and many of the lesser criminal convictions as well. You professors, like many other liber- als, envision yourselves at the center of the world with everything and everyone revolving around you. You fell off the merry-go-round years ago, but are still too dizzy to realize that you are no longer at the center of the universe. Ordinary ® people are sickened by the criminal on- slaught permitted by Bird, et ilk. Cali- fornia is not the only place where you will see that there will be a strong reac- tion to the judicial immorality we have witnessed in the past decade. You gain no sympathy for Justice Bird by striking off her critics as anti-femin- ists. It's unfortunate that Bird denigrates herprofession. Would you have her deni- grate her sex as well? She looks very attrac- tive on the cover of Judicature. Why didn't you use more ink to explore her "politics?" Capital punishment, I'll wager, is not the only issue, nor is her sex. Ripping the critics of Bird's bench does not address the major objection to her, which is her stand against the en- forcement of criminal law and the just punishment of ruthless offenders. No matter how pretty you wrap the package, the odious character of Bird's adminis- tration, witness the Tanner case, has seeped out and turned many noses away, too strong even for California. You cannot label all critics of Bird as conservatives unless you also intend to tag all conservatives as sensitive, caring people who seek the protection of society and the courts against the individual hoodlums who prowl about committing murder, robbery and mischief of every sort. Judicial accountability should have no politics. If Bird and her compatriots cannot measure up, then the rascals should be thrown out. Doyle T. Johns, Jr. District Attorney 13th Judicial District Fort Morgan, Colorado A response to the response After reading Professor Nagel's rebuttal, ("A response to the responses") I am not certain that he understood the comments of the three reactors to his article. ("Sys- tematic assignment of judges: a pro- posal," August-September, 1986.) Professor Nagel's ultimate conclusion is that there (seems) "..o to be agreement among the respondents that the present assignment system is unsystematic..." That is not so. I believe the point of all three responding articles is that there are different ways to effect systematic assign- ment of judges and differing reasons for each way. In addition, although all three approached the issue differently, each arti- cle describes existing systematic processes. I would reiterate, for the record, that the use of today's technology can be quite helpful to the judicial manager in the process of making "systematic assign- ments" but that many very human quali- ties must be taken into consideration along with "production" requirements. The proposal by Professor Nagel does not adequately address the complex optimum assignment problem that chief judges have been solving for many years in large urban courts, and a problem which, I be- lieve, he must analyze a bit more thor- oughly before proposing a solution. Larry P. Polansky Executive Officer District of Columbia Courts Washington, D.C. More important judicial qualities Although there is obvious merit to the article by Professor Glick and Mr. Em- mert ("Stability and change: characteris- tics of state supreme court judges" Au- gust-Septem ber, 1986), I am disappointed with it in two specific respects. The quotation in bold face at the top middle of page 110 is very misleading. The "quote" does not accurately reflect the comments of the authors in that the authors restricted their comment to "in these terms" which referred to the man- ner in which a superior legal education is often "construed." Furthermore, the bias of the authors to private and, in particular, prestigious Ivy League law schools is quite obvious. While no one can debate the clear merits of some of the prestigious Ivy League law schools (Harvard, Yale, Columbia) it is a serious breach of good scholarship and research to limit an evaluation of good legal education to those schools. Along with the prestigious Ivy League schools, there are prestigious public non-Ivy League schools, there are prestigious pub- lic non-Ivy League law schools acknowl- edged to be superior law colleges. To eval- uate judges' educations in terms of atten- dance at prestigious Ivy League schools is very misleading and not really useful. Frankly, I think that AJS would be the first to acknowledge that there are judi- cial qualities far more important than whether the j udge attended a private and prestigious law school. The form of elit- ism indicated in this aspect of the article is most unfortunate and not in accor- dance with the usual very high standards of your publication. If nothing else is demonstrated by this letter, it should indicate to you that those who receive the publication do indeed read it. By no means should my critical comments on this aspect of one article be considered criticism of the Society or the usual very high quality of the articles contained in the publication. Robert T. Grimit Lincoln, Nebraska (See editor's and authors'response, page 175) TITX 0022278 141
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M conscientious, and the ablc^, The Framers did not neglect this prob- lem, but the answer they offered has needed some modifying. In the Consti- tution, the goal of assuring judicial propriety was balanced against the need for judicial independence. Article III guarantees federal judges tenure, at full salary, for life. The primary means for removal is impeachment, which may be brought against the president, vice pres- ident, and other civil officers as well. Virtually all state constitutions also authorized impeachment of state court judges. Although, of course, state courts are not governed by Article III, 9 of the 13 original state constitutions provided life tenure for judges. During the Jacksonian era, however, a majority of states made judges elected officials. On its face, that gave citizens another level of power over incompetent state judges. But judicial campaigns did not become the paradigm of democracy that proponents had envi- sioned. Because of voter unfamiliarity with the issues, and the lack of promi- nent candidates, incumbents frequently ran unopposed, and so came to enjoy a kind of de facto tenure. Thus, as with the federal judicary, impeachment or similar legislative measures, such as address and concurrent resolution, became the prim- ary means available to discipline judges. Impeachment admittedly is a power- ful but blunt instrument. In Lord Bryce's words, "Impeachment ... is the heaviest piece of artillery in the congressional arsenal, but because it is so heavy, it is unfit for ordinary use. It is like a hundred- ton gun which needs complex machinery to bring into position, an enormous charge of powder to fire it, and a large mark to aim at." Over the past 200 years, articles of impeachment have been voted against ten federal judges, not including the Harry E. Claiborne case; four were convicted and removed from the bench. Impeachment was comparatively rare, for largely the same reasons, at the state level. By the middle of this century, it had become starkly apparent that im- peachment was an adequate remedy only for the most flagrant and serious breaches of judicial conduct. As a result, concerned public officials and members of the Bar began to seek alternative solutions. The first experi- ment was attempted in New York State, which in 1948 created a special court on the judiciary. This court, howecer, had no permanent staff to investigate com- plaints, and could impose no sanction short of impeachment. Thus it suffered the same shortcomings as the rnecha- nism it was designed to supplement. In 1960, California took a different ap- proach to the same problem, establish- ing by constitutional amendment a judi- cial qualifications commission. Under the direction of a full-time executive director, the commission was given au- thority to receive and review complaints against judges, conduct investigations, convene formal adversary hearings and make disciplinary recommendations to the state supreme court. The court, in turn, had final responsibility, based on the record submitted by the commission, to impose a range of sanctions, includ- ing removal or involuntary retirement. Other states rapidly followed suit, and today all 50 states and the District of Columbia operate judicial conduct or- ganizations modeled, with some differ- ences in scope and structure, on the Cali- fornia prototype. In the 1970s, pressure mounted to create a similar mechanism for the federal courts. That effort gained impetus from the Watergate scandal, fueled by the grow- ing distrust of public officials. Through- out the decade, Congress struggled to fashion a system more flexible and effi- cient than impeachment, but one that would not undercut the independence crucial to a vigorous, unfettered judiciary. Some in Congress called for a national commission that could investigate com- plaints and bring charges against federal judges in adversary proceedings. Others would have authorized the judiciary to remove judges found to be unfit. The fed- eral Judicial Conference, however, took the position that removal of an Article III judge by any means other than impeach- ment was of dubious constitutionality. The final result was a compromise: the Judicial Councils Reform and Judi- cial Conduct and Disability Act of 1980. The Act did not create a special court or a separate commission; rather, it left the primary responsibility for investigation and discipline with the judiciary, through the Judicial Council of each circuit and the national Judicial Confer- ence. Neither body may remove a judge from office, but they may censure a judge, request that a judge voluntarily retire, or direct that no cases be assigned to the judge for a limited period. When more severe action seems warranted, the Judicial Conference may transmit the case to the House of Representatives to consider impeachment. Not all my colleagues on the federal bench approved of this measure. Some believed there was no need to create an additional mechanism for monitoring judicial performance. Indeed, even the House Committee that reported on the 1980 Act acknowledged that "our Fed- eral Judiciary has a long and honorable history that may well be unmatched by other elements in public, private, and corporate life," and that "corruption and criminal activity appear to be rare in the Federal Judiciary." I agreed with this view, but I also agreed with the rather modest caveat expressed by the same committee: "In all systems that men have devised, something occasionally will go wrong,"-a rather more polite variation on Hamilton's distinction be- tween people, a category that presuma- bly includes even members of the judi- ciary, and angels. Need for controls Since 1980, events have reinforced the view that effective controls on judicial conduct are essential. At the federal level, we have seen three criminal trials of district j udges: two resulted in convic- tions; a third resulted in acquittal, but raised sufficient questions to prompt a still-pending Judicial Council investi- gation pursuant to the 1980 Act. Im- peachment proceedings were initiated against one of the convicted judges, and are expected to be brought against the other. State courts have also been affected by similar controversies. Troubling allega- tions against members of courts in Penn- sylvania, Rhode Island, and Illinois have attracted wide publicity in the last two years. Some of the charges involved crimi- nal violations; others seemed to encom- pass ethical improprieties and breaches of duty not so flagrant as to merit impeach- ment, but serious enough to warrant full investigation and grave sanctions-just the type of case for which j udicial conduct organizations were created. In the past year, more than at any other time, judicial misconduct has become a (continued on page 174) TITX 0022280 143
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Llost prisoner litigation raises serious federalism questions about the appropri- ate distribution of authoritv between state governments and federal courts. The vast majority of prisoners' rights cases challenge procedures and condi- tions in state prisons because more than 93 per cent of those incarcerated are in state institutions.ts Most of these cases are filed in federal courts because it is a federal statute that serves as the vehicle for constitutional claims by prisoners against public officials. In 1964, the Supreme Court's decision in Cooper v. Pate determined that state prisoners could bring actions under the Civil Rights Act of 1871 to challenge their conditions of confinement.16 As a result, prisoners have sued under Section 1983 of Title 42 of the United States Code, a statute that permits suits against state officials to be filed in federal courts, in order to assert claims of constitutional rights violations.t' The rise of the civil rights movement precipitated the formation of legal asis- tance organizations and the assertion of political and constitutional claims for a variety of powerless groups, including mental patients, welfare recipients, and physically handicapped persons. As with these other groups, prisoner assistance organizations formed and emulated the efforts of the racial equality movement lawyers by initiating constitutional lit- igation on behalf of the incarcerated. The growth of prisoner litigation coin- cided with the federal courts' greater receptivity to constitutional claims dur- ing the 1960s and 1970s. The availability of Section 1983 and the growth of litiga- tion has led the federal judiciary to examine state correctional institutions, and more importantly, resulted in reme- dial orders that entail significant judi- cial interventions into the operations of many state prisons. These interventions raise questions relating to state auto- nomy and the proper scope of federal judicial authority. Both the legitimacy and capacity of courts to implement remedies in prisons must be considered in order to determine the appropriate role of judges in pri- soner litigation.1e The legitimacy issue concerns whether judges should recog- nize the constitutional basis of prison- ers' claims and whether the judiciary has the authority to order and supervise For most of American history, judges would not accept prisoners' claims of rights violations. remedies affecting state correctional in- stitutions. The capacity issue relates to courts' ability, rather than authority, to design and enforce workable remedial orders affecting the administration of state prisons. Criticisms of the judiciary's capacity to act focus on the broad reme- dies that intimately involve federal judges in the day-to-day affairs of state agen- cies.19 Judges are not trained correctional administrators or professional penolo- gists and thus they are said to lack the capacity to properly oversee significant, effective change in state prison systems. Criticisms of judicial activity In his recent speeches and writings, Attorney General Meese has advocated judicial restraint by urging the Supreme Court and federal judges to interpret the Constitution according to a "jurispru- dence of original intention."20 Meese's theory of constitutional interpretation would, if adopted by judges, have serious ramifications for prisoner litigation. In looking to the intentions of the Bill of Rights' authors, concerns about pro- 15. A survey in 1984 indicated that there were 463,866 persons incarcerated in American prisons, but as of 1983, only 31,000 of these were in federal prisons. Cole, THE AMERICAN SYSTEM OF CRIMINAL JUSTtCE 502,512 (Monterey, CA: Brooks/Cole Pub- lishing, 1986). 16. Cooper v. Pate, 378 U.S. 546 (1964). 17. 42 U.S.C. §1983 provides: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects or causes to be subjected any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and the laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." 18. See Horowitz, supra n. 8, at 18-19. 19. See, e.g., Glazer, supra n. 6; Horowitz, supra tections for criminal defenclants are evi- dent in the constitutional provisions relating to searches, self-incrimination, and right to trial by jury. The Constitu- tion's lone reference to convicted offend- ers is the Eighth Amendment's prohibi- tion on "cruel and unusual punish- ments." When viewed in light of penal practices in 1791, which included harsh corporal and capital punishments as well as unsuccessful innovations such as solitary confinement for all offenders,2t deference to the intentions of the eigh- teenth-century men who wrote the Con- stitution implies an abdication of judi- cial concern about the treatment of criminal offenders and the conditions within prisons. In effect, the approach advocated by Meese emulates the "hands-off" doctrine applied by courts to prison systems until the 1960s. For most of American history, judges would not accept prisoners' claims of rights violations.22 The rea- sons for avoiding prisoner litigation ranged from earlier views that a prisoner was legally a "slave" of the state and therefore devoid of any civil rightsz3 to twentieth-century deference to prison officials as experts on the treatment of criminal offenders.24 The judicial re- straint advocated by Meese would leave prisoners unprotected against the physi- cal abuse and inhuman conditions that existed in many correctional institutions before federal judges intervened. Supreme Court Justices Brennan and Stevens have both publicly responded to Meese's view of the Constitution.25 Bren- nan asserts that the framers of the Con- stitution did not agree among them- selves and therefore no clear intention can be gleaned from history, much less one that applies to contemporary legal problems.26 Furthermore, Brennan notes, n. 8. 20. Meese, address to the American Bar Associa- tion's House of Delegates, Washington, D.C., July 9, 1985, quoted in Taylor, Meese, in Bar Group Speech, Criticizes High Court, N.Y. TIMES, July 10, 1985 at 13. 21. See Walker, POPULAR JUSTICE 35-53 (New York: Oxford University Press, 1980). 22. Federal courts have long accepted prisoners' habeas corpus petitions, but only in the past few decades have they entertained inmates' civil rights suits. 23. Ruffin v. Commonwealth, 62 Va. 790, 796 (1871). 24. See, e.g., Banning v. Looney, 213 F.2d 771 (10th Cir.) cert. denied 348 U.S. 859 (1954). 25. Brennan, supra n. 3; Stevens, supra n. 3. 26. Brennan, supra n. 3, at 4. 146 Judicature Volume 70, Number 3 October-November, 1986 TITX 0022282
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ti Constitutional rights without remedies: judicial review of underinclusive legislation When a law treats differentially groups that ought to be treated identically, courts can invalidate the statute or expand it to include the formerly excluded. The result, the authors say, can be the affirmation of a right-without a remedy for the plaintiff. By Bruce K. Miller and Neal E. Devins 0 n the face of it, the recent decisions of People v. Li- beria' from the New York Court of Appeals, and Heck- ler v. Matherus2 from the United States Supreme Court, have nothing in com- mon. One is a rape appeal, the other a Social Security case; one is a landmark, rightly celebrated in the popular press,3 the other a doctrinally insignificant ap- proval of a temporary statute that has already expired; one is expansive in its reading of the equal protection guaran- tee, the other cautious, consolidating in tone. Liberia and Mathews converge only in their similar treatment of the apparently mundane question of how a court ought to go about remedying an impermissibly underinclusive statutory classification, that is, a law which treats differently people or groups which ought to be treated the same. By approaching this question in a manner that ignores the realities of the litigation process, the two decisions have together articulated a doctrine that threatens our most funda- mental assumptions about judicial re- view in constitutional cases. Substantial portions of the discussion of Heckler v. Mathews in this essay are drawn from a previously published article by one of the authors. Miller, Con- stitutional Remedies for Underinclusive Statutes, 20Hexv. C.R.-C.L. L. Rt=.v. 79 (1985). The editors of that journal have graciously consented to the au- thors' republication of excerpts from that article. 1. 64 N.Y.2d 152, 485 N.Y.S. 207 (1984). 2. 465 U.S. 728 (1984). 3. N.Y. TtMFs, Dec. 21, 1984, at 1. 4. N.Y. Penal Law §§130.00, subd. 4, 130.35 (McKinney 1984). 5. 64 N.Y.2d at 164, 485 N.Y.S. at 213. 6. Id. at 170, 485 N.Y.S. at 218. 7. Id. at 171, 485 N.Y.S. at 218. 8. Id. at 171-72, 485 N.Y.S. at 218. 9. Id. at 172, 485 N.Y.S. at 219. 10. 42 U.S.C. §§402(b), (c), (e), (f) (1982). 11, 430 U. S. 199 (1977). People u Liberta Until 1984, a New York statute' exempted from prosecution husbands who raped their wives if the spouses were living together at the time of the rape. Because Mario Liberta was not living with his wife when he sexually assaulted her in 1981, he was prosecu ted and convicted of raping her. He appealed his conviction, arguing that the marital exemption was unconstitutional and that New York's rape statute could not therefore be en- forced against him. In a unanimous, landmark decision, the New York Court of Appeals agreed with Mr. Liberta that the marital rape exemption was invalid. Judge (now Chief Judge) Wachtler's opinion for the court affirmed the right of a married woman to control her body,s thereby underscoring the willingness of our j udi- ciary to protect an indispensable condi- tion of human freedom. In this respect, the decision honors the most basic aspi- rations of our legal system. But after holding the marital exemp- tion unconstitutional, the court of ap- peals nonetheless allowed Mario Liber- ta's rape conviction to stand. Proceeding from the premise that "when a statute is constitutionally defective because of un- derinclusion, a court may either strike the statute, and thus make it applicable to nobody, or extend the coverage of the sta- tute to those formerly excluded,"6 Judge Wachtler saw the court's remedial task as "to discern what course the legislature would have chosen to follow if it had foreseen our concl usions as to underinclu- siveness."7 Not at all surprisingly, "the inevitable conclusion [was] that the legis- lative would prefer to eliminate the [mari- tal] exemptions and thereby preserve the [rape] statutes."8 Accordingly, since the statutes under which Mr. Liberta "was convicted [were] not being struck down, his conviction"9 was affirmed. Heckler u Mathews The Social Security Act has long pro- vided spousal benefits for the wives, husbands, widows, and widowers of re- tired and disabled wage earners. Spousal benefits are based on the earnings of the retired or disabled wage earner.'0 Prior to December, 1977, the Act demanded that men seeking spousal benefits demon- state dependency on their wage-earner wives for one half of their support. Women, on the other hand, could qual- ify for benefits wi thout having to make a similar demonstration of dependency on their husbands. In March, 1977, the Supreme Court, in Califano v. Goldfarb," held this gender- based dependency test unconstitutional under the Equal Protection Clause of the Fifth Amendment. The Court concluded that the male-only dependency test re- sulted in the work of females (whose hus- bands had to prove dependency) provid- ing less protection to their families in the form of benefits than the work of males (whose wives automatically received the government pension). To eliminate this inequity, the Court invalidated the male- only proof-of-dependency requirement. In response to this decision, Congress, in December, 1977, amended the Social Security Act. First, Congress eliminated the male-only dependency test. Second, Congress enacted a "pension offset" pro- vision which required that spousal bene- fits be reduced by federal/state govern- TITX 0022287 151
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although Meese's proposals pretend to remove the judiciary from the realm of policy-making, interpretation by origi- nal intention would in effect have the extremely political consequence of estab- lishing "antipathy to claims of the mi- nority to rights against the majority."27 This effect would be contrary to the judiciary's important role in safeguard- ing individual rights; as a result, politi- callY powerless groups, such as prison- ers, would have great difficulty in gain- ing recognition and protection of their constitutional rights. The primary criticisms of j udicial activity in inmate litigation relate not so much to whether prisoners have rights under the Constitution, but the extent of those rights and the appropriate limits of judge-ordered remedies. In essence, courts are accused of moving beyond the protection of identifiable constitutional rights to the creation of public policies that have no relation to individuals' rights.28 According to Supreme Court Justice William Rehnquist, the federal courts are improperly taking the "wide range of 'judgment calls' " away from the appropriate government officials outside the judiciary.29 One specific criticism of court involve- ment with state prisoner litigation is that federal judicial resources are being wasted on frivolous lawsuits. There are examples of state prisoners filing suits over relatively minor matters such as a missing $23 hobby kit30 and stolen packs of cigarettes.g' At present, because the fed- eral courts remain a primary forum for airing prisoner complaints of all types, the judicial branch has no choice but to receive, consider, and then dismiss many inconsequential suits. However, resolu- tion of this litigation volume problem lies not in reducing activity by courts, but in creating alternative dispute-reso- lution mechanisms,92 effective adminis- trative grievance procedures," or im- 27. Id. at 4-5. 28. Glazer, supra n. 6, at 71. 29. Bell v. Wolfish, 441 U.S. 520, 562 (1979). 30. Parratt v. Taylor, 451 U.S. 527 (1981). 31. Russell v. Bodner, 489 F.2d 280 (3d Cir. 1973). 32. See Cole, Hanson and Silbert, ALTERNATIVE DISPUTE RESOLUTION MECHANISMS FOR PRISONER GuEVANCFS (Washington, D.C.: National Institute of Corrections, 1984). 33. Id. at 30-34. 34. Flores, Bounds and Reality: Lawbooks A lone Do Not a Lawyer Make, 7 LAw LIBR. J. 275, 287 nsa4.85). 35. E.g., Johnson v. Avery, 393 U.S. 483 (1969). Courts have sought to balance the needs of correctional institutions against prisoners' asserted Constitutional rights. proved legal counseling services for pri- soners.3' The development of alternatives could create more appropriate complaint procedures while keeping the federal courts available to hear recognizable constitutional claims. Complaints about specific actions by courts arose in the 1960s and 1970s as federal judges identified prisoners' con- stitutional rights and ordered correc- tional institutions to implement changes in their practices and procedures. Pri- soners gained rights related to access to the courts,35 religious expression,s6 pro- cedural due process,37 and unreasonable searches.3e Although state ptison admin- istrators initially objected to the asser- tion of these rights under the First, Fourth, Fifth, and Fourteenth Amend- ments, the courts have sought to balance the needs of correctional institutions against the prisoners' asserted rights. For example, in several cases the Su- preme Court acknowledged that prison officials have broad authority to manage their institutions so long as they respect the "narrow range of protected liberty interests" retained by prisoners.39 In Bell v. Wol f ish, the Supreme Court approved strip searches by weighing the prisoners' 36. E.g., Fulwood v. Clemmer, 206 F.Supp. 370 (D.C. 1962). 37. E.g., Wolff v. McDonnell, 418 U.S. 539 (1974). 38. E.g., Lee v. Downs, 641 F.2d 1117 (4th Cir. 1981). 39. Hewitt v. Helms, 459 U.S. 460, 467 (1983). 40. Bell v. Wolfish, 441 U.S. 520, 547 (1979). 41. Fulwood v. Clemmer, 206 F.Supp. 370 (D.C. 1962). 42. Wolff v. McDonnell, 418 U.S. 539 (1974). 43. See Jacobs, NEW PERSPECTIVES ON PRISONS AND IMPRISONMENT 33-60 (Ithaca, NY: Cornell University Press, 1983). personal rights against the institution's interests in maintaining internal order and security and finding institutional interests paramount.90 Thus there is a continuing theme of federal court defer- ence to the knowledge and concerns of correctional administrators. The remedies ordered to protect consti- tutional rights usually required only rel- atively cost-free changes in prison proce- dures, not substantial increases in fund- ing or personnel. For example, it did not require significant budgetary expendi- tures to allow Muslim prisoners to grow beards and pray together41 or to give inmates notice of disciplinary charges against them.42 In fact, prisons actually gained some administrative benefits from judicial intervention. Prisoner litigation has served to clarify staff roles within prisons and encourage professionaliza- tion within corrections occupations and organizations.'3 Thus, for example, pri- son administrators have increased their control and knowledge of the regular tasks performed by prison staff in deal- ing with rules infractions by inmates. If prisoner litigation were limited to cases concerning religious expression, unreasonable searches, and procedural due process rights, disagreements about judges' actions would probably be rela- tively mild. The federal courts' enforce- ment of these specific rights, while affect- ing individual prison policies, generally had only slight effects upon state control of correctional institutions. Thus, it is possible for courts to be active in protect- ing the rights of prisoners without becom- ing enmeshed in the administration of state prisons. The limited extent of rem- edies ordered by judges has made it rela- tively easy for states to develop and imple- ment new policies. Judicial intervention into the affairs of state prisons does not automatically create persistent intergov- ernmental conflict, expensive remedies, resistance, or lasting recriminations. "Cruel and unusual punishments" The greatest conflicts over the proper role of federal judges in prisoner litiga- tion concern Eighth Amendment cases alleging unconstitutional conditions of confinement. The Eighth Amendment contains a prohibition on "cruel and unusual punishments:" these four words have been applied to find unconstitu- tional conditions in specific prisons or TITX 0022283 147
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The basic question is whether actualization of prisoners' rights can rest in the hands of the same branches that created and maintained the rights violations in the first place. ,~.. cause of the reapportionment cases.76 Prisoners, however, do not fit neatly into this equal opportunity-political partic- ;,ation model. Criminal offenders in .state prisons constitute a relatively small segment of the population, which, more- over, lacks political rights and opportun- ities to participate in governmental pro- cesses. Prisoners depend on judges to protect their limited range of rights be- cause they have no alternative means of access to policy-making." Prisoners' rights cases present a particular area of litigation that does not fit within the limitations on judges imposed by Ely's representation-reinforcing theory of ju- dicial activity. What then serves to limit what judges can do? First, the political realities of the American governmental system indicate that, lacking concrete power over any purse or sword, judges will use negotia- tion and compromise to push state legis- lators and prison administrators in a general direction rather than attempt to force complete compliance by fiat.78 Second, decisions by the Supreme Court and courts of appeals serve as con- straints on judges in prisoner litigation. In Bell v. Wolfish, the Supreme Court indicated that there should be judicial deference to administrators in matters af- fecting the management of prisons.79 Lower courts followed the Supreme Court's lead in subsequently producing a noticeable number of pro-correctional in- stitution decisions.e0 In Rhodes v. Chap- man, the Supreme Court reversed lower court decisions finding that placing two prisoners to a cell violated the Eighth Amendment.81 Double celling, as it is called, is a common practice in prisons throughout the country. As prison popu- lations increase, the practice will con- tinue to be prevalent, even in those pri- sons designed for one prisoner per cell. Despite the practice's negative effect upon prison conditions, the Supreme Court has effectively precluded the lower courts from relying on this aspect of pri- son conditions in identifying unconsti- tutional conditions of confinement. Other federal courts have responded to the Supreme Court's initiative by cur- tailing judicial authority to fashion broad, intrusive remedies. For example, in Kendrick v. Bland the Sixth Circuit Court of Appeals emphasized the impor- tance of considering state interests before ordering remedies in prison cases.82 Sim- ilarly, the Ninth Circuit mandated judi- cial deference to prison administrators in rejecting lower court remedies in Hoptowit v. Spellman.89 Such trends can greatly influence the potential actions of judges in prisoner litigation. Attorneys who represent pri- soners now focus more on specific con- stitutional violations, rather than on broad conditions-of-conf inemen t cases. ea In addition, by establishing standards for constitutional practices and condi- tions in prisons, judges have already alleviated many of the most serious prob- lems and effectively limited their own involvement in far-reaching prisoners' rights cases. Unless the prison over- crowding problem reaches such a new magnitude that it shakes the Supreme 76. E.g., Baker v. Carr, 369 U.S. 186 (1962). 77. Chayes, supra n. 6, at 1315. 78. See Yarbrough, supra n. 62. 79. Bell v. Wolfish, 441 U.S. 520 (1979). 80. Robbins, The Cry of Wolfish in the Federal Courts: The Future of Federal fudicial Interven- tion in Prison Administration, 71 J. CRtta. L. & CRIMINOLOGY 211, 225 (1980). 81. Rhodes v. Chapman, 452 U.S. 337 (1981). 82. Kendrick v. Bland, 740 E2d 432 (6th Cir. 1984). 83. Hoptowit v. Spellman, 753 F.2d 779 (9th Cir. 1985). 84. Bronstein, Responses: Institutional Litiga- tion, 12 N. Y. U. Rev. L. & Soc. CHANGe 825-37 (1984). 85. Bell v. Wolfish, 441 U.S. 520, 562 (1979). 86. According to Justice Brennan: "[T]he lower [federal] courts have learned from repeated investi- Court out of its conc lusions in Rhodes i~ Chapman, it is unlikely that there will be future instances of detailed, cotnpre- hensive remedies that intimately involve federal judges in the daily operations of state prisons. Conclusion Broad, intrusive interventions into state prison systems epitomize the actions by judges that have raised serious questions about the legitimacy and capacity of courts to act upon public policy issues. While acknowledging the existence of constitutionally-deficient conditions in prisons, Justice Rehnquist believes that constitutional rights can be "scrupu- lously observed" by permitting state offi- cials to design and implement their own remedies for constitutional violations.es However, experience indicates that reli- ance upon the states will not always lead to prompt correction of constitutional deficiencies. The federal judiciary has observed numerous instances of state re- sistance to measures necessary for the effectuation of prisoners' rights.86 This resistance is not surprising, because state government is structured to reflect major- itarian political preferences rather than to respond to the constitutional rights of individuals, especially politically power- less criminal offenders. The basic question remains whether actualization of prisoners' constitutional rights can rest in the hands of the same elected legislative and executive branches that created and maintained the civil rights violations in the first place. Expe- rience in prisoner litigation indicates that, particularly in regard to Eighth Amendment violations requiring fi- nancial expenditures for compliance, j udicial intervention is necessary and ap- propriate for the vindication of constitu- tional rights. 0 gation and bitter experience that judicial interven- tion is indispensable if constitutional dictates-not to mention considerations of basic humanity-are to be observed in prisons." Rhodes v. Chapman, 452 U.S. 337,354 (198 1) (Brennan, J., concurring); and, "Of course, the courts should not'assume that state legislatures and prison officials are insensitive to the requirements of the Constitution,'... but sad experience has shown that sometimes they can in fact be insensitive to such requirements. Id. at 358n. 7. CHRlSTOPHER E. SMI TH is a lecturer in pol- itical science at the University of Connecticut. TITX 0022286 150 Judicature Volume 70, Number 3 October-November, 1986
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The growth of the federal judicial labor force: a budget-based perspective An analysis of the budget of the federal judiciary indicates that both court staffs and court system administrative structures have grown substantially. These developments have important costs and benefits, and careful analysis should precede a decision to expand the judiciary's labor force further. By Jonathan P. Nase A The growth of American gov- ernmental institutions has sparked considerable contro- versy because "more and more people are apparently convinced that bureaucracy is whirling out of control and are both infuriated and terrified by the prospect."' The expansion of Amer- ican judicial institutions has been par- ticularly con troversial because commen- tators insist that growth has serious I drawbacks. Judge Patrick Higgin- botham, for example, has argued that the expansion of the judicial labor force I 1. Kaufman, Fear of Bureaucracy: A Raging Pandemic, 41 PuB. AD. REV. 1, 1(1981). 2. Higginbotham, Bureaucracy-The Carci- noma of the Federal Judiciary, 31 ALA. L. REV. 261, 261 (1980). 3. Vining, Justice, Bureaucracy, and Legal Method, 80 MICH. L. REV. 248, 249 (1981). 4. Pub. L. No. 76-299, 53 Stat. 1223 (1939). 5. Pub, L. No. 79-464, 60 Stat. 323 (1946). 6. Fish, THE POLITICS OF FEDERAL JUDICIAL ADMINISTRATION 231 (Princeton, NJ: Princeton University Press, 1973). 7. Although the annual appropriations act in- cludes funds to operate the bankruptcy system, the money does not come from the general funds of the Treasury. "The Referees' Salary and Expense Fund was created in the United States Treasury for the sole purpose of meeting the cost of operating the referees' salary system established in 1947. It can be ased for no other purpose." Director of the Adminis- trative Officeof the United States Courts, ANN. REP. 151 (1965). 8. Pub. L. No. 88-455, 78 Stat. 552 (1964). 9. Pub. L. No. 90-219, 81 Stat. 664 (1967). 10. Pub. L. No. 90-578, 82 Stat. 1107 (1968). has eroded "the classic role model of the federal j udiciary. "2 Professor Joseph Vin- ing has gone even further, arguing that the expansion of judges' staffs threatens to undermine not just legal traditions, but law itself.' This article examines the changes in the budget of the federal judiciary be- tween 1940 and 1983 in order to answer several questions: How has the federal j udiciary grown? How has the j udiciary's labor force changed? And what are the implications of those changes? Although the commentators have identified sev- eral potentially serious problems, this article concludes that the case against the so-called bureaucratization of the courts is generally overstated. This arti- cle also concludes that a three-step anal- ysis should be used to ensure that further increases in the size of the judicial labor force will help rather than harm the Third Branch. Two important trends The data. Table 1 depicts the budget of the federal judiciary, exclusive of the Supreme Court, from 1940 to 1983. When Congress created the Administrative Of- fice of the United States Courts' (AO), the judicial budget was a relatively sim- ple document. The salaries of judges and supporting personnel (such as bailiffs) and the fees of jurors constituted 85 per cent of the appropriations for the court system. The remaining funds were used to operate the various special courts (such as the Court of Customs and Pat- ent Appeals) and the AO, and to pay for travel and miscellaneous expenses. Over the years, the judiciary's budget grew more complex because several items were added to the appropriations. The first new item was added as a result of the Referee's Salary Act of 1946.5 That Act "abolished the 'fee and commission' sys- tem of compensation and substituted a salary system"6 for paying referees in bankruptcy (now called bankruptcy judges). The judiciary's budget conse- quently began to include funds to oper- ate the bankruptcy system.7 Other items also became part of the judiciary's budget because Congress en- acted substantive or authorizing legisla- tion. The item "court appointed coun- sel" was added to pay attorneys appoin ted to represent indigent criminal defendants under the Criminal Justice Act of 1964.8 The items "Federal Judicial Center" and "Magistrates' Salaries and Expenses" were added because Congress created the Federal Judicial Center9 and the United States Magistrates' System,'a respectively. The item "Space and Facilities," which TITX 0022293 157
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ment pensions. This offset provision was designed to rectify the substantial increase in Social Security payments caused by the elimination of the depen- dency test. Third, apparently concerned about the effect of the new offset provi- sions on those persons (women and men who could prove dependency) who had planned their retiremen ts on the assump- tion that they would receive full unre- duced spousal benefits, Congress chose to exclude this group of individuals from the pension offset requirement for a five-year grace period. In order to effec- tuate this result, Congress incorporated into the offset exception the dependency test found unconstitutional in Goldfarb. Fourth, Congress, recognizing that the dependency test might be invalidated, included a severability clause in the leg- islation. This provision would have nul- lified the "pension offset" exception, if the dependency test were found uncon- stitutional in this context.12 After retiring from his job with the Post Office, Robert Mathews applied for Social Security husbands' benefits under the 1977 Amendment on the basis of his wife's earnings record. But because he could not satisfy the pre-Goldfarb depen- dency test, Mathews' Social Security en- titlement was entirely offset by his fed- eral pension. He then filed a lawsuit challenging the constitutionality of both the "pension offset" exception and the severability clause. Mathews maintained that the offset exception was an improper reenactment of the gender classification held unconstitutional in Califano u Goldfarb. His challenge to the severabil- ity clause had two elements. First, the severability clause, by nullifying rather than extending the offset exception, de- nied him an adequate remedy for an unconstitutionally inflicted injury. In other words, "men [could] vindicate their constitutional right to equal protection only be causing others to forfeit benefits they have been previously entitled to. "13 Second, the severability clause was an improper curtailment of federal court jurisdiction, since by prohibiting a re- viewing court from granting adequate relief to Mathews, it in effect eliminated his standing to maintain the suit.t' The Supreme Court unanimously re- jected both arguments. The severability clause, according to Justice Brennan's opinion for the Court, did not under- mine vlathews' standing to sue and thereby threaten the Court's power to correct constitutional violations, because the right claimed by Mathews was not the right to Social Security benefits but rather the right to a benefit distribution scheme that was free of unconstitutional gender discrimination." Like the New York Court of Appeals in People v. Liberta, Justice Brennan pointed out that a court which sustains a claim of unconstitutional underinclu- siveness "faces 'two remedial alterna- tives: [it] may either declare [the statute] a nullity and order that its benefits not extend to the class that the legislature intended to benefit or it may extend the coverage of the statute to include those who are aggrieved by the exclusion.' "ts A court should not, however, make this choice in a way that "circumvent[s] the intent of the legislature."" Because the severability clause clearly expressed Con- gress' "preference for nullification rather than extension of the pension offset exception in the event it is found inval- id,"18 the proper remedy was obvious. That remedy did not, however, have to be implemented in Mr. Mathews' case be- cause of Justice Brennan's finding that the pension offset exception did not vio- late the equal protection guarantee. The temporary reenactment of the pre-Gold- farb classification was permissible be- cause it was substantially related to the goal of protecting the reliance interests of those who expected to receive benefits under the pre-Goldfarb rules.19 Impact on judicial review The Liberta and Mathews decisions are two prominent recent examples of a dis- turbing willingness of our most presti- gious courts to entertain constitutional challenges to statutes without granting relief to the litigants who brought those challenges forward. The remedial ap- 12. Social Security Amendments of 1977, Pub. L. No. 95-216, §§334(a)(2), (b)(1), (b)(2), (d)(1), (f), (g), 42 U.S.C. §§402(b)(4)(A), (c)(1)(C), (c)(2)(A), (h)(l)(D), (n). 13. Appellee's Brief at 42, Heckler v. Mathews, 104 S.Ct. 1387 (1984). 14. Mathews v. Heckler, 1982 Unempl. Ins. Rep. (CCH) 114,313 at 2408 (N.D. Ala. Aug. 24, 1982), rev'd, 104 S.Ct. 1387 (1984). The district court sus- tained both of Mathews' arguments, holding the offset exception unconstitutional and then labeling the severability provision as an "adroit attempt to discourage the bringing of an action by destroying standing." The clause sought to "mandate the out- come of any challenge to the validity of the [pen- sion offsetj exception by making such a challenge 152 Judicature Volume 70, Number 3 October-November, 1986 proach taken in the two cases is most visibly troubling because it moves the courts away from their traditional and most important role as arbiters of con- crete disputes. The New York Court of Appeals used Liberta's appeal as the oc- casion to end New York's marital rape exemption, but its decision had no bear- ing on whether his rape conviction stood or fell. Similarly, the Supreme Court used Mathews' claim for Social Security benefits as the vehicle for resolving the constitutionality of the pension offsetex- ception, but the resolution did not affect his entitlement to the benefits he sought. But on another level, one step removed from the immediate interests of Liberta and Mathews, the decisions are even more disquieting. If taken seriously as a guide to lower court judges on how to think about remedying unconstitution- ally underinclusive classifications, Li- berta and Mathews could quickly crip- ple the process that brings such classifica- tions to light. It is a truism of our adversarial judi- cial system that courts do not declare statutes unconstitutional on their own initiative. They act only when asked to do so by a person claiming to be harmed by such a statute.20 Thus the question of the constitutionality of New York's mar- ital rape exemption was before the court only because Liberta, or, more precisely, his lawyer, Barbara Howe of the Buffalo Legal Aid Society, raised the issue. Howe argued that because New York's rape law arbitrarily exempted some hus- bands, but not Liberta, from prosecu- tion for raping their wives, the statute violated the constitutional guarantee of equal protection of the laws. Because the rape statute was invalid, she contended, Liberta could not properly be convicted under it. Howe did not challenge the marital rape exemption in order to reform the fruitless. This kind of 'in tetrorem' approach insu- lates the legislative work product from judicial review, in violation of the doctrine of separation of powers." It was therefore "an unconstitutional usurpation of judicial power." Id. 15. Heckler v. Mathews, 465 U.S. 728, 737 (1984). 16. Id. at 738. 17. Id. at 739, n.5 (quoting Califano v. Westcou, 443 U.S. 76, 93-94 (Powell, J., concurring in part and dissenting in part)). 18. Id. 19. Id. at 744-51. 20. See, e.g., Ualley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 484 (1982). TITX 0022288 i
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other states.b' In addition, actions by judges can serve to heighten public awareness of prison issues and stimulate reforms beyond the scope of the original court orders.65 Overall, inmates are granted constitutional protections with- out undermining the prison administra- tion's interests in maintenance of staff authority and control.se The legitimacy of intervention The existence of both positive and nega- tive effects from judges' actions concern- ing prison conditions indicates that the appropriate role of the judiciary cannot be determined by focusing on the institu- tional capacity of courts to order broad, effective remedies. The practical policy consequences of court interventions are important, but any conclusions about the propriety of judicial actions in prison- ers' rights cases requires consideration of the legitimacy of court interventions. Justice Rehnquist claims that courts have lost their understanding of "what branch of the Government...[possesses] the authority to devise the plan" for reforming prisons.fi7 Rehnquist has ad- vocated extremely limited remedies ap- plicable only to discrete incidents of rights violations.68 Rehnquist's view im- plies that the federal courts are usurping legislative and executive powers in the states by ordering broad, detailed reme- dies for unconstitutional prison condi- tions. According to critics of judicial intervention, judges can make declara- tions about constitutional violations, but the judiciary should defer to other branches of government for the devel- opment of plans to correct deficiencies. In this way the various branches will 64. The authors of a study concerning state spending on corrections concluded that: "The lev- els of per prisoner spending in states that have had court cases are, in general, lower than in states that have not experienced prisoner rights litigation"; and "On balance we can say that court-ordered reform seems to have produced some modest'equal- izing' effect across the states as measured by correc- tional expenditures per prisoner." Harriman and Straussman, Do Judges Determine Budget Deci- sionsf Federal Court Decisions in Prison Reform and State Spending for Corrections, 43 PUB. AD. REV. 343, 348 (1983). 65. Yarbrough, The Alabama Prison Litigation, 9JusT.SYs. J.276, 289(1984); Note, Federal Judicial Relief for Overcrowded Prisons: Lareau v. Manson and Structural Considerations of an Activist Inter- pretation of Bell v. Wolfish, 14 CONN. L. REV. 861, 8110(1982). 66. See Harris and Spiller, AFTER DECISION: IM- M.EMENTATION OF JUDICIAL DECREES IN CORREC- noNALSETTINGS (Washington, D.C.: National In- sutute of Law Enforcement and Criminal Justice, Rehnquist has advocated extremely limited remedies applicable only to discrete instances of rights violations. perform their legitimate roles without any infringement of authority by overac- tive j udges. Although this type of judicial restraint would encourage harmonious relations between state governments and federal courts, it would not protect the constitu- tional rights of prisoners. Relying on the states for the development of remedies means implementation of protections for prisoners' rights is placed squarely in the hands of the elected legislatures and governors who fostered the unconstitu- tional prison conditions in the first place. The political processes represent- ing the interests of the majority of voters and organized groups cannot be expected to vindicate the rights of a small, politi- cally weak and widely scorned group 1977). 67. Bell v. Wolfish, 441 U.S. 520,562 (1979). 68. Fair, Remedies Without Rights? The Legal Basis of Broad-Gauge Decrees in Prison Conditions Cases, 2 POL'Y STUD. REV. 262-64 (1982). 69. See Brennan, supra n. 3, at 6. 70. Rich and Barnett, Model-Based U.S. Prison Population Projections, 45 Pus. AD. REV. 780-89 (1985). 71. See Horgan, The Courts as Alchernists: Re- making Reality in Prison Decisions, 17 GONZ. L. REV. 639, 640 (1982). 72. In a concurring opinion, Justice Brennan cited congressional testimony from a former New Jersey corrections official who said that: "[Iln every one of the 17 lawsuits in which he had participated, the government officials worked in a 'systematic way' to'impede the fulfillment of constitutionality within our institutions.' " Rhodes v. Chapman, 452 U.S. 337, 358 n. 7(1981) (Brennan, J., concurring). 73. Id. at 354. 74. See, Ely, supra n. 13. 75. Id. at 74. such as prisoners.69 State legislative and executive branches work together to de- fine crimes, establish penalties, and allo- cate resources to corrections. In many instances, overcrowding and deteriorat- ing prison conditions are exacerbated by the national trend to stiffen prison sent- ences without adequately expanding pri- son facilities. Despite reductions in crime rates, prison populations are expected to rise and overcrowding will most likely remain a serious long-term problem in light of current sentencing policies.70 Through policy decisions affecting prisoners' rights, such as permitting pri- sons to become overcrowded without ade- quately developing alternatives to incar- ceration or expanding facilities, state legislatures and governors have shown the extent to which they are influenced by financial and political, rather than constitutional, considerations. The real- ities of legislative agendas and state politics mean that if anyone takes respon- sibility for correcting prison abuse, it must be the courts.71 Federal courts have experienced numerous instances of res- istance to prison reform, reinforcing judges' reluctance to rely upon state governments for correcting unconstitu- tional conditions.72 Thus, according to Justice Brennan, judicial intervention is indispensable for the elimination of con- stitutional violations in prisons.73 Limits of judicial authority The conclusion that federal courts should be actively involved in creating remedies for unconstitutional conditions of confinement does not imply unlim- ited judicial authority. John Hart Ely has argued that activity by judges on constitutional issues should be limited to reinforcing democratic processes by insuring that politically weak groups can secure their rights for participation and representation in government.74 Ac- cording to Ely, activist courts during the Warren era protected minorities not by imposing their own values in decisions, but by reaching legal conclusions that served to open up the system for political and economic participation by all groups.75 Thus, decisions about public policies could be made through demo- cratic processes with participation by diverse perspectives and interests. For example, blacks could gain a more equal measure of political participation be- TITX 0022285 149
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preliminary injunction restraining en- forcement of President Truman's order directing the Secretary of Commerce to take control of most of the nation's steel mills. The Court based its affirmance on its finding that "equity's extraordinary .. . relief"29 was the only means of assur- ing the threatened companies an ade- quate remedy for unconstitutionally in- flicted injuries, despite the gravity of its interference with the conduct of execu- tive power in time of war. Similarly, school desegregation litiga- tion since the Supreme Court's second Brown decision" has centered largely on remedial issues and has been premised on the idea that the constitutional right to be free from officially imposed racial segregation includes an adequate remedy for the injury such separation inflicts. In Green v. New Kent County School Board, for example, the Court invalidated inef- fective, voluntary freedom-of-choice plans and demanded that school boards come forward with a plan "that prom- ises realistically to work now."st Three years later, in Swann v. Charlotte-Meck- lenburg County Board of Education,32 the Court upheld the use of mandatory busing as a desegregation remedy, ac- knowledging that in order to eliminate all vestiges of an unconstitutional dual school system, the necessary remedies may be "administratively awkward, in- convenient, and even bizarre."33 The proposition that vindication of a constitutional right includes an ade- quate remedy has been confirmed more recently by the Supreme Court's line of decisions, beginning with Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,39 grounding the availability of an adequate remedy for constitutional violation in the Article III powers of the federal courts. In Bivens, the Court sustained a claim for damages against federal agents for injuries caused by a warrantless arrest and search in vio- lation of the Fourth Amendment. There was no federal statute authorizing such a claim. Nevertheless, the damage award was properly within the power of a fed- eral court, because of the principle an- nounced in Bell v. Hood, i.e., that "where legal rights have been invaded...courts will ... grant the necessary relief."35 The Court then emphasized that an effective remedy was inherent in the protection afforded by the Fourth Amendment: From the earliest days of the republic, it has been fundamental that an injured person is entitled to relief from that injury. [W]e cannot accept respondents' tonnula- tion of the question as whether the availa- bility of money damages is necessary to enforce the Fourth Amendment. For we have here no explicit congressional decla- ration that persons injured by a federal officer's violation of the Fourth Amend- ment may not recover damages from the agents, but must instead be remitted to another remedy, equally effective in the eyes of Congress.9s Bivens thus acknowledges the primary responsibility of Congress over remedies for injuries inflicted by the unconstitu- tional conduct of federal officials, but also underscores the power of the federal courts to afford constitutionally suffi- cient relief in the event Congress fails to carry out that responsibility." The duty of the federal courts to pro- vide relief for unconstitutional injuries is in no way incompatible with a broad reading of Congress' power, under the "exceptions" clause of Article III of the Constitution, to regulate the subject mat- ter jurisdiction of the federal courts. Even if the exceptions power authorizes 29. Id. at 384. 30. Brown v. Board of Education, 349 U.S. 294 (1955). 31. 391 U.S. 430, 439 (1968). 32. 402 U.S. l (1971). 33. Id. at 28. 34. 403 U.S. 388 (1971). 35. 327 U.S. at 684. 36. 403 U.S. at'f97. 37. The Supreme Court has reaffirmed the Biv- ens principle on three occasions since announcing it in 1971. See Davis v. Passman, 442 U.S. 228 (1979) (authorizing damage remedy for congressional staff member unconstitutionally discharged on the basis of gender); Carlson v. Green, 446 U.S. 14 (1980) (authorizing damage claim for parent of federal prisoner whose death was caused by official failure to provide medical care); Bush v. Lucas, 462 U.S. 367 (1983) (affitrrting dismissal of federal employee's damage claim for violation of First Amendment rights, on ground that remedies provided by civil Congress to exempt particular classes of constitutional claims from federal re- view, it cannot, consistent with the sepa- ration of governmental powers, be read to permit Congress formally to grant the power of review over such claims while, at the same time, withdrawing the au- thority of a reviewing court to provide relief to the injured claimant. As Profes- sor Laurence H. Tribe has pointed out: Congress may not so truncate the jurisdic- tion of an Article III court as to empower it to 'decide' a legal controversy while denying it any means to effectuate its decision.... Congress' broad authority to regulate the panoply of available remedies, in other words, stops short of the power to reduce an Article III court to a disarmed, disembodied oracle of the law lacking all capacity to give tangible meaning to its decisions.se If the federal courts are required to provide adequate remedies for the viola- tion of constitutional rights, the duties of the state courts, under the supremacy clause, cannot be any less. Nearly 40 years have passed since the Supreme Court confirmed, in Testa v. Katt,39 the general obligation of state courts to enforce federal constitutional rights vio- lated by state policies or statutes. And long before Testa, it was clear that such enforcement entailed a duty to provide a constitutionally sufficient remedy for injuries caused by the violation.40 From the earliest days of the republic, then, a fundamental assumption of our legal order has been the proposition that a person injured by unconstitutional gov- ernment action is entitled to judicial relief from that injury." A crucial distinction Judge Wachtler's opinion for the New York Court of Appeals in Liberta did not address the question of Liberta's right to service commission regulation were constitution- ally adequate). 38. Tribe, Jurisdictional Gerrymandering: Zon- ing Disfavored Rights Out of the Federal Courts, 16 Harv. C. R.-C.L.L. Rev. 129 (1981). 39. 330 U. S. 386 (1947). 40. See, e.g., Iowa-Des Moines Nat'l Bank v. Ben- nett, 284 U.S. 239 (1981); Ward v. Love County, 253 U.S. 17 (1920); General Oil Company v. Crain, 209 U.S. 211 (1908). 41. The general availability of a sovereign im- munity defense to unauthorized damage suits against federal and state governments does not undercut this principle. In situations where sover eign immunity precludes an award of monetary relief, the power of the federal courts to provide constitutionally adequate alternative remedies be- comes an integral element of the "paramount authority of the Federal Constitution." Sterling v Constantin, 387 U.S. 378, 397-98 (1932); see also, General Oil v. Crain, 209 U.S. 211, 236 (1908). 154 Judicature Volume 70, Number 3 October-November, 1986 TITX 0022290
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quences of our belief that the only justif- iable decisions were extension of Social Security benefits in Mathews and nulli- fication of New York's rape statutes in their entirety in Liberta. Mathews is, of course, the easier case. Congress obvi- ously would retain the authority to re- spond to a Supreme Court decision ex- tending the pension offset exception to Mathews by prospectively repealing the exception entirely. Such a prospective repeal would neither interfere with a reviewing court's ability to gran t relief to the litigants before it nor obstruct access to judicial review by foreclosing any relief in advance of the filingof a lawsuit. Paradoxically, it is at least possible that a decision to disregard the Mathews severability clause would entail very lit- tle intrusion on the legitimate exercise of legislative power. Though the legisla- tive history is silent on the point, it is not unreasonable to assume that any mem- ber of Congress who considered the likely impact of the clause would have seen that its most immediate and predic- table effect would be to stifle the incen- tive-and possibly the standing-of men denied benefits because of the underin- clusiveness to challenge the constitu- tionality of the sex discrimination ef- fected by the exception. Such a disincen- tive would thus work to assure that the harsh remedial option-nullification of the exception-envisioned by the clause would never have to be invoked. Under these circumstances, it becomes much more problematical to describe the severability clause, despite its facial clarity, as a reliable indication of Con- gress' remedial intention in the event the exception were declared unconstitu- tional. The clause was, in a very real sense, purely hypothetical, in contrast to, for example, a repeal of the exception enacted after adjudication of its uncon- stitutionality or a direction (regardless of when enacted) that the constitutional- ity of the exception be assured by extend- ing the benefits it confers. Each of these latter prescriptions takes seriously the legislature's primary role as a dispenser of constitutional remedies. The offset severability clause (along with other provisions like it, which purport to deny all remedies for constitutional injuries) may, on the other hand, quite plausibly be viewed as a legislative bluff. Bluffs of this sort should be called. The price, in terms of legislative prerogatives, is small, especially in light of the countervailing danger to the effective exercise of judi- cial review. The short-term consequences of nulli- fying New York's rape statutes are obvi- ously more serious than those presented by a decision to disregard the Mathews severability clause. Judge Wachtler feared that a judicial invalidation of the govern- ment's authority to prosecute rapists would have "catastrophic effects. "51 Not only would Liberta have to be released, but perhaps all persons ever arrested or convicted for rape in the state of New York might be entitled to dismissal of the charge or reversal of the conviction.5s It is at least conceivable, however, that the consequences of granting relief to Liberta might not have been so dire. The hiatus created by invalidating the rape statute would surely have been hastily repaired by the legislature. And United States Supreme Court precedents offer substantial leeway for limiting the ret- roactive application of a constitutional principle in order to avoid reopening criminal convictions.56 Even so, it would be unfair to minim- ize the costs of reversing Liberta's convic- tion. If New York's rape statute had been held to be unenforceable, prosecutions of men awaiting trial on charges of rape, many of them surely guilty, would have to have been dropped. Liberta himself, already found guilty of rape, would in- deed have gone free. No one could respon- sibly argue that these are consequences we should accept easily or blithely. But the price of allowing the guilty to go free is one our society has been will- ing to pay before (most notably in the case of the rule excluding illegally se- cured evidence from admission at trial)57 in order to assure constitutional govern- ment. We believe it is a price that should have been paid in the Liberta case. By affirming his conviction, the New York Court of Appeals undermined the only process that could have opened the way for its historic elimination of the marital rape exemption. If there are other uncon- stitutionally underinclusive statutes bur- ied in New York's criminal code, we wonder whether, after Liberta, they will reach the court's docket. Conclusion On the face of it, the remedial decisions in People v. Liberta and Heckler u Mathews may seem unobjectionable. In each case, the court approached the task of correcting an unconstitutionally un- derinclusive statute by deferring to the presumed wishes of the enacting legisla- ture. In each case, the legislative prefer- ence was accurately gauged and unprob- lematically applied. And in Liberia, where the court's remedial choice was actually carried out, the result-exten- sion of liability for rape to all husbands -was plainly the only tolerable legisla- tive policy choice. This appearance, however, is highly deceptive. The practical impact of Li- berta and Mathews is to advise persons injured by unconstitutionally underin- clusive statutes that corrective litigation cannot help them but can only harm others. This message effectively chokes off the litigation process and thereby threatens to immunize such statutes from judicial scrutiny. The remedial approach of the Liberia and Mathews courts con- sequently undermines the power of courts to hear and decide constitutional claims, a result that is plainly inconsist- ent with the traditional goal of limiting government through law. If this practical impediment is taken to mean that litigants such as Mathews and Liberta do not have standing to present their constitutional challenges, it will present a formal bar to adjudication as well. Many underinclusive statutes will be theoretically as well as practically im- mune from challenge. The Liberta and Mathews decisions thus fail to mask a genuine dilemma: either there is a right to a constitutional remedy or the Consti- tution does not really reach the issues the two cases purported to resolve. 0 54. People v. Liberta, 64 N.Y.2d at 171, 485 N.Y.S.2d at 218. 55. Id. at 173, 485 N.Y.S.2d at 320. 56. See, e.g., Linkletter v. Walker, 381 U.S. 618 (1965); Adams v. Illinois, 405 U.S. 278 (1972); Grif- fin v. California, 380 U.S. 609 (1965); Johnson v. New Jersey, 384 U.S. 319 (1966); United States v. Wade, 388 U.S. 218 (1967). 57. See Mapp v. Ohio, 367 U.S. 643 (1961). BRUCE K. MILLER is a professor of law at Western New England College, and served as co-counsel for respondent in Heckler v Mathews. NEAL E. DEVINS is assistant general coun- sel, U.S. Commission on Civil Rights. The views expressed are the author's and do not necessarily represent the opinions of the Commission. P 156 Judicature Volume 70, Number 3 October-November, 1986 ' TITX 0022292
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Very few cases get the full adjudicatory treatment ending with a verdict and a j udgment. range from 5 per cent to 10 per cent of cases filed ever getting to trial.9 In the data collected by the Civil Litigation Research Project, court records indicated that only 8 per cent of the 1,649 sampled state and federal cases went to trial (and some of those were settled before the trial was completed).10 A typical assumption is that cases that are not resolved by trial are not adjudicated, and are not influ- enced by adjudication." In fact, as I will show below, adjudication is an explicit factor in the outcome of many cases; I will further argue that this is only the tip of the judicial "shadow"72 because I have no way of assessing the role of adjudication as an implicit factor in the settlement process. In the following discussion, I will draw on data collected by the Civil Lit- igation Research Project (CLRP). The specific data that I rely on come from court records of 1,649 randomly selected cases in state and federal courts, supple- mented with information from a survey of 1,382 lawyers representing parties in those cases. The cases were selected from seven state and five federal courts in five federal j udicial districts around the coun- try (Eastern Wisconsin, Eastern Pennsyl- vania, Central California, South Caro- lina, and New Mexico); all of the court cases were terminated during calendar year 1978. The sample was limited to cases involving a claim of at least $1,000, or some significant nonmonetary de- mand; certain types of cases (e.g., pri- soner petitions, certain kinds of labor law issues, etc.) were excluded from the sample, and one type, domestic rela- tions, was included in a limited fashion.'3 Extensive information was abstracted from court records by the research staff, and each of the 1,382 lawyers was inter- 9. E.g., Miller, The Adversary System: Dinosaur or Phoenix, 69 MINN. L. REV. 1 at 4, "...in many parts of the nation more than ninety percent of civil suits never reach trial." 10. See Trubek, Sarat, Felstiner, Kritzer, Gross- man, The Costs of Ordinary Litigation, 31 UCLA L. R. 72 at 89 (1983). 11. See Alschuler, supra n. 8. 12. See Mnookin and Kornhauser, supra n. 6. 13. See Kritzer, Methods for Studying Disputes: Learning from the CLRP Experience, 15 LAW & viewed by telephone about the specific case selected for the sample; the inter- views averaged one hour in length.t4 Adjudicatory categories Adjudication is most often thoughtof in terms of a trial before a j udge or a j ury. As Soc'Y REV. 503, 512 (1980-81). 14. For more detail on the data collection see id.; Trubek, Grossman, Felstiner, Kritzer, and Sarat, THE CIVIL LITIGATION RESEARCH PROJECr: FINAL REPORT (2 volumes) (Madison, WI: Dispute Process- ing Research Program, 1983); Kritzer, The Citnl Litigation Research Project: Lessons for Studyirtg the Civil Justice System, in Gelfand (ed.), PROcEr9- INGS OF THE SECOND WORKSHOP ON LAW AND JUS- TICE STATISTICS 1983, 30-36 (Washington, DC: Na- tional Institute of Justice, 1984). 162 Judicature Volume 70, Number 3 October-November, 1986 TITX 0022298
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who can "release criminally accused per- sons on bond or on their own recogniz- ance, try and sentence persons for minor offenses, conduct pretrial and discovery proceedings, and review and recommend disposition of post-conviction applica- tions. All of these have traditionally been viewed as judicial duties."'t And, of course, the most obvious threat of all comes from the expansion of judges' personal staffs. Contemporary judges are not "mere extensions of their staffs,"'2 but they may be tempted to delegate tasks that only a judge should perform. Similarly, commentators have proba- bly exaggerated the threat posed by the increased administrative responsibilities that an expanded judicial labor force gives the Article III judge. Richard B. Hoffman argues that the "federal judge has become the judicial equivalent of the managing partner of a small law firm. "33 This may be true of the chief judge in any district or circuit court, but the administrative responsibilities of the average federal j udge are probably more like those of any partner in a small- to medium-sized law firm. The expansion of the court system's central administra- tive structure imposes no new adminis- trative responsibilities on the federal judge, except to the extent that the Judi- cial Conference of the United States Courts oversees the activities of the AO and the FJC. In fact, the expansion of the court system's central administrative structure can buttress the position of the Article III judge. First, to the extent that FJC-sponsored research may reveal fas- ter, more efficient methods of processing cases-methods that allow courts to cope with greater volume without greater resources-the expanding administra- tive structure would limit the adminis- trative burdens of the federal judge. Second, seminars conducted by the FJC could provide judges with the training to manage larger staffs. Larger central staffs, in contrast, im- pose great administrative responsibili- ties on the chief judge. But the average federal j udge only has the added adminis- trative challenge of coordinating the activities of his staff with those of central staff offices. By far the greatest addition of adminis- trative responsibilities has resulted from the expansion of judges' personal staffs. In the district courts, "judicial support personnel" typically includes two law clerks, a court deputy clerk, and a secre- tary for each judge.34 The contemporary federal judge clearly has more adminis- trative responsibilities than his 1940 counterpart. But perhaps that compari- son is misleading. The men and women recruited to the bench today are largely people whose prior experience in private practice, government service, or acade- mia required the coordination and re- view of work from associates, research assistants, or clerks, as well as parale- gals, secretaries, and possibly investiga- tors or other auxiliary personnel. It is hard to believe that such persons find the administrative responsibilities of a judge more than they can bear. Finally, commentators have argued that the role of the Article III judge is threatened by a qual itative change in the federal judicial labor force. In the words of Judge Higginbotham, The very success of the judicial model has contributed not only to its overuse by judges, but also to a tendency of Congress and other agencies to adopt the trappings of the model for essentially non-Article III purposes. This phenomenon is evidenced by the conversion of hearing examiners to judges, commissioners to magistrates, and referees in bankruptcy to judges. Thecopy- ing is flattering, but by making everyone on the block a judge, we only dilute and diminish the true judicial office-an office central to government.'S The consequence, Judge Higginbotham concludes, will be a decline in the qual- ity of the federal bench.96 Judge Higginbotham is rightly con- cerned about maintaining the value of the judicial currency. There is room for argu- ment, however, about the effect of these changes on the quality of the federal bench. After all, if it is true that a dou- bling or trebling of the number of full- fledged judges would not seriously under- mine the quality of judicial recruits," why would the creation of a few score junior judgeships achieve this result? Conclusion Expansion of the judicial labor force, then, has both positive and negative as- pects. There are good reasons for con- cern about the consequences of growth. Nevertheless, expanding the judicial la- bor force has been beneficial in some respects. What is needed is a way to max- imize the beneficial consequences while minimizing or even eliminating the neg- ative consequences. The following three-step analysis would achieve this result. When a pro- posal would lead to an increase in the judiciary's labor force, decisionmakers should first determine whether the pro- posal would result in a non-judge per- forming a function that should only be performed by a judge. As Roger A. Johnsen has stated, "there must be estab- lished a clear distinction between those duties calling for the use of judicial per- sonnel and those which might be per- formed just as adequately by clerical or other nonjudicial employees."Se Al- though this distinction is undoubtedly difficult to draw, the Supreme Court's decision in Northern Pipeline Construc- tion Co. v. Marathon Pipe Line Co.39 demands such a line of demarcation. If a proposed reform passes that first test, decisionmakers should turn their attention to the proposal's impact on the judicial currency. A certain amount of prestige must be maintained if top-flight personnel are to be attracted to the fed- eral bench. No reform should be adopted if it would cause judges' prestige to fall below this floor level. The final step is a marginal cost-bene- fit analysis. Do the marginal benefits out- weigh the marginal costs? If not, the proposal should be disapproved. This is not to say that any proposal passing each of the three steps should be approved. No analysis could possibly account for every variable that rightfully ought to be considered. The analysis suggested here has a much more modest goal: to ensure that decisionmakers do not reject propos- als out of a blind fear of the growth of governmental institutions. 0 91. Meador, APPELLATE COURTS: STAFF AND PRO- CESS IN THE CRISIS OF VOLUME, 13 (St. Paul: West Publishing Co., 1974). 32. Edwards, supra n. 17, at 260; see also Powell, supra n. 17, at 1372. 33. Hoffman, supra n. 20, at 62. 34. Heydebrand, supra n. 19, at 788. 35. Higginbotham, supra n. 2, at 264. 36. Id. at 271. 37. Carrington, Meador, and Rosenberg, JUSTICE ON APPEAL 140 (St. Paul: West Publishing, 1976). 38. Johnsen, Judicial Manpower Problems, 328 ANNALS 29, 33 (1960). 39. 458 U.S. 50, 73 L.Ed.2d 598, 102 S.Ct. 2858 (1982). JONATHAN P. NASE is an assistant counsel with the Republican Legal Staff, Pennsylva- nia House of Representatives. 160 Judicature Volume 70, Number 3 October-November, 1986 TITX 0022296
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a remedy. Presumably, this omission was prompted by Liberta's unambiguous guilt of the act of rape, regardless of the constitutionality of the marital rape ex- emption. But Liberta's guilt does not alter the fact that in the case before the court of appeals, the appeal of his con- viction, it was he and only he who was injured by the exemption. Unless his injury can fairly be described as some- thing other than the conviction itself, there is no escaping the conclusion that the court failed to perform its constitu- tional duty to provide him a remedy. Justice Brennan, on the other hand, did consider Mathews' right to a remedy. He found, however, that Mathews' right could be satisfied equally by either exten- sion or nullification of the pension off- set exception. The reason either remedy was equally effective was that in Bren- nan's view, the injury suffered by Mathews was not the denial of the Social Security benefits he sought, but was instead the gender "discrimination it- self."42 Such discrimination, by perpetuating 'archaic and stereotypic notions' or by stigmatizing members of the disfavored group as 'innately inferior' and therefore as less worthy participants in the political community ... can cause serious non-economic injuries to those persons who are personally denied equal treatment solely because of their membership in a disfavored group.4' An adequate remedy for this inj ury could, of course, "be accomplished by with- drawal of benefits for the favored class as well as by the extension of benefits to the excluded class."44 This equation of the injury caused 14athews by the pension offset exception with the possible unconstitutionality of ` the exception itself is, however, a trans- parent fiction. Its transparency is re- vealed by applying Brennan's metho- dology in Mathews to Liberta's appeal. For Brennan, the injury suffered by Liberta would not be his rape convic- 42. Heckler v. Mathews, 465 U.S. 728, at 739. 43. Id. at 739-40. 44. Id. at 740. 45. !d- at 739. 46.398 U.S. 333, 344 (1970). Both the Mathews ~ttUbertaopinions invoke Justice Harlan's Welsh ~rttnce as the starting point for their remedial OWYsis. Heckler v. Mathews, 465 U.S. at 738; Peo- * ~' La6erta. 64 N.Y.2d at 170, 485 N.Y.S. at 218. n. Id. at 337. * 50 U S C app. §456(_) (Supp. IV 1964); ~,59®US.at336. ~ Nebh 398 U.S. at 341-43. 54Id' at 356 (Harlan, J., concurring in result). tion, but rather the New York legisla- ture's denial of his right to a statu te crim- inalizing rape that is free of irrational distinctions based on the marital rela- tionship of the victim and perpetrator. Such distinctions themselves, by "perpe- tuating archaic notions" and "stigmat- izing members of the disfavored group"45 cause serious injuries to the members of that group. To describe Liberta's injury in this way is, of course, absurd. It is married women raped by their husbands, not rapists who are not married to their vic- tims, who are stigmatized by the marital rape exemption and thereby labeled as less worthy participants in the political community. This dehumanization of women because they are married is the reason why the marital exemption was rightly eliminated by the Liberta court, but it is not, in any sense, the injury which prompted Liberta's appeal. That injury remains his conviction for the crime of rape. The inadequacy of Brennan's charac- terization of Mathews' injury is con- firmed by the opinion that provided the foundation for the remedial dispositions in both Mathews and Liberta: Justice Harlan's concurring opinion in Welsh v. United States.16 Welsh concerned an ap- peal from a criminal conviction by a con- scientious objector whose opposition to war was based on ethical beliefs of a secu- lar rather than a religious nature.47 The statute authorizing exemption from mil- itary service for conscientious objectors had been construed by selective service officials to limit objector status to those whose opposition to war was grounded in formal religious training and belief.48 A majority of the Supreme Court rejected this construction and reversed Welsh's conviction on the ground that the statute was broad enought to encompass his eth- ically rooted, but not traditionally reli- gious, conscientious scruples.49 Harlan 51. Id. at 301. 52. Id. at 362-63. 53. Welsh was, of course, a criminal appeal. It might, for this reason, be argued that Justice Har- lan's concurring opinion, while supporting Liber- ta's argument for reversal of his conviction, is of no help in Heckler v. Mathews, a civil case. But the proposition that a reviewing court's task is not complete until it has remedied the injury caused by an unconstitutional governmental action has long been commonplace in civil cases. See, e.g., Iowa- Des Moines National Bank v. Bennett, 284 U.S. 239, 247 (1931). could not accept the majority's reading of the statute and was thus compelled to reach the constitutional issue, which he resolved by finding that the statutory dis- tinction between religious and secular beliefs amounted to an unconstitutional establishment of religion, in violation of the First Amendment.so Harlan's disposition of the merits of Welsh's appeal forced him to address the question of the appropriate constitu- tional remedy. He began by stating the proposition that was to serve as the start- ing point for both Judge Wachtler in Liberta and Justice Brennan in Mathews: Where a statute is defective because of underinclusion, there exist two remedial alternatives; a court may eitherdeclare [the statute] a nullity and order that its benefits not extend to the class that the legislature intended to benefit, or it may extend the coverage of the statute to include those who are aggrieved by the exclusion.51 The unconstitutionality of Welsh's in- jury could plainly have been remedied by nullifying the exemption granted to religious objectors. Nevertheless, nulli- fication was, in Harlan's view, inade- quate as a constitutional remedy. The reason was that while nullification would correct the unconstitutionality of statutory exemption scheme, it would not touch the injury suffered by Welsh- the conviction for refusing induction and corresponding prison sentence. This injury could be redressed only by extend- ing the benefit of conscientious objec- tion to Welsh and others whose moral opposition to participation in war was grounded in secular rather than reli- gious belief.52 The distinction is a critical one: When confronted with an injury that is created by an unconstitutionally underinclusive statutory classification, the responsibil- ity of a federal court is not simply to correct the unconstitutionality but to remedy the injury. In Liberta's case, this means reversing the conviction. In Mathews', it means directing payment of his Social Security benefits.53 Costs of a remedy If, as we have argued, the non-remedies dispensed by the Mathews and Liberta courts indeed threaten the tradition of judicial review of unconstitutional gov- ernment action, it is only fair that we acknowledge the far from trivial conse- TITX 0022291 155
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Table 1 The appropriations for the federal judiciary (In millions) iscal year udges salaries Salaries of supporting personnel Jurors and United States Commissioners pecial courts dministrative Office ravel and miscellaneous Bankruptcy system- salaries and expenses Court appointed counsel Federal Judicial Center Magistrates' salaries and expenses Space and faellltles ther otal' 1940 31 3.9 24 0.6 01 0.9 11.0 1941 3.2 4.0 2.3 06 02 0.9 - - - 11.2 1942 3.3 42 2.4 06 03 1.0 - - 11.8 1943 3.3 4.6 2.3 06 0,3 0.9 12.1 1944 3.3 5.2 2.2 06 0.3 1.0 - - 12.7 1945 33 5.5 2.0 06 03 1.1 12.9 1946 33 73 2.2 08 03 1.2 15.1 1947 4.5 8.0 20 1.0 0.4 1.2 - - 17.1 1948 4.7 8.3 1.8 09 0.4 1.2 1.3 0,5 19.1 1949 4.7 9.2 22 1.0 0.4 L2 16 - - - - 0.1 20.4 1950 5.0 99 34 11 0.5 1.6 1 8 - - - - 01 23.4 1951 5.2 10.7 34 12 0.5 1.4 1 8 - - - 24.3 1952 5.2 11.9 3.7 1.2 0.6 1.5 1 9 - - - - 26.1 1953 5.2 12.0 4.0 1.3 0.6 1.6 2.2 - - - 26.9 1954 5.1 124 4.0 1.3 0.6 1.8 2.4 - - - 27.6 1955 6.4 13.2 4.1 1.3 0.6 1.8 2.6 - - 30.1 1956 8.4 14.7 4.4 1.6 0.6 2.5 3.0 - - 353 1957 8.7 16.2 4.4 1.6 0.8 2.7 3.4 - 0.5 38.4 1958 9.0 191 5.0 1.7 0.9 2.8 4.2 - 42.7 1959 9.2 21.0 5.1 1.9 1.0 3.1 4 9 462 1960 9.2 21,5 4.8 2.0 1.2 3.5 5 1 473 1961 9.2 23.8 4.6 2.1 1.4 3.8 5.8 50.7 1962 101 25.6 4.8 2.2 1.4 5.4 67 56.3 1963 11.0 28,0 5.5 2.3 1.4 4.7 7.4 0.1 60.4 1964 11.2 30.7 5.5 2.5 1.5 4,5 7.9 0.1 63.8 1965 145 33.6 5.8 2.8 1.7 4.7 9.9 - - - - - 72.9 1966 147 35.1 7.2 2.9 1.8 4.9 10.9 3.0 - - 80.5 1967 15.9 38.3 7.7 3.2 2.0 6.0 11.2 3.0 - - - - 87.2 1968 16.5 41.2 8.2 35 2.1 6.1 11.9 3.2 - - - - 92.6 1969 18.7 45.9 11,9 3.9 1.9 6.9 13.4 4.0 0.3 - - - 107,0 1970 22.4 53.5 155 4.5 23 7.5 15.6 4.3 0.6 0.6 - - 126.6 1971 244 60.2 16.0 49 3.1 9.3 15.9 9.0 0.7 4.6 - 0.4 148.5 1972 26.1 69.9 18.0 5.1 3.6 9 6 17.5 14.5 1.3 57 - - 171.3 1973 270 77.2 18.2 5.2 4.1 10.6 19.2 16.0 15 67 - 0.3 1860 1974 27.3 90.0 18.5 5.3 4.7 12.9 19.9 17.9 21 7.8 - - 206.3 1975 28.0 103.8 17.5 5.6 5.8 15.1 21.1 15.8 3.5 8.8 62.5 16.8 304.2 1976 28.8 119.5 200 5.9 8.0 20.0 26.1 19.0 6.6 10.9 64.0 6.6 335.4 1977 34.1 139.3 21.5 6.6 9.4 24.4 31.8 21.0 7.8 14.3 72.0 36.0 418.2 1978 38.2 156.9 23.3 7.1 11.1 27.6 34.0 24.0 6.7 17.5 87.2 9.0 442.5 1979 41.5 175.5 24,8 78 12.9 35.5 36.7 24.8 8.3 19.4 98.4 17,7 503.2 1980 52.1 203.7 34.0 12.2 15.8 37.8 56.5 26.0 8.6 22.8 105.0 4.4 578.8 1981 56.0 232.9 36.0 12.9 17.2 41.8 69.5 24.0 9.2 24.6 105.5 4.2 633.8 19822 62.3 276.3 39.0 13.5 20.8 55.6 84.7 28.7 7.8 - 117.0 3.8 7D9.3 1983 68.4 309.3 40.5 9.9 24.0 63.0 95.6 34.2 7.7 - 127.4 16.0 796.0 1. The total shown here is the amount appropriated by Congress. Because of rounding, the appropriations for the several appropriations items may not add up to the total shown here. 2. Beginning in fiscal 1982, the appropriations for "Magistrates' salaries and expenses" was consolidated into the appropriations for "Salaries of supporting personnef" and "Travel and miscellaneous." 1981 Annual Report of the Director of the Administrative Office of the United States Courts 171 (Table 25, note 2). Sources: Annual Report of the Director of the Administrative Office of the United States Courts 1940-1983. was added after Congress adopted the Public Buildings Amendments of 1972,11 represents an internalization of an exter- nality. That is, until the 1970s, the Gen- eral Services Administration footed the bill for the judiciary's courtroom and of- fice space. By changing this practice, the 1972 Act forced the judiciary to take the cost of office space into account when asking Congress for additional staff. The final appropriations item in- cluded in Table I is for "other" appropri- ations. This item includes funds for non-recurring items-items that do not appear in the j udiciary's budget year after year. For example, the fiscal 1973 budget included appropriations for the Commission on Revision of the Federal Court Appellate System and for the Commission on Bankruptcy Laws of the United States.12 Analysis. Table 1 indicates that most of the judicial budget is used to pay salaries. "Salaries of supporting person- nel" claimed 38.9 per cent of the budget in fiscal 1983. This statistic suggests that much of the expansion in the judicial budget was caused by the growth of the judicial labor force. Personnel statistics support this suggestion.'g Inflation was obviously a factor," as was the addition 11. Pub. L. No. 92-313, 86 Stat. 216 (1972). This legislation authorized the Director of the General Services Administration to "charge anyone fur- nished services, space, quarters, maintenance, re- pairs or other facilities...at rates to be determined by the Administrator." 12. Director of the Administrative Office of the United States Courts, 1973 ANN. REP. 255 (Table 77). 13. Between fiscal 1960 and fiscal 1978 alone, the judicial labor force increased 124 per cent, from 5,561 to 12,472. Meador, The Federal Judiciary and Its Future Administration, 65 VA. L. REV. 1031, 1060-61 (1979). 14. The value of the dollar dropped from 2.381 in of large sums for space and facilities, but the importance of the expanding judi- cial labor force cannot be denied. Table 1 also indicates that the number of non-judges increased much more rap- idly than the number of Article III judges; the appropriations for the salar- ies of support personnel increased as a percentage of the budget between 1940 and 1983,15 while the appropriations for fiscal 1940 to .335 in fiscal 1983 (using the value of the dollar in 1967 as the standard). United States Department of Commerce, STATISTICAL ABSTRACT OF THE UNITED STATES 1984; United States Depart- ment of Commerce, BUSINESS STATISTICS 1971. 15. The appropriations for "salaries of support- ing personnel" comprised 38.9 per cent of the judi- cial budget in fiscal 1983, compared to 35.5 percent in fiscal 1940. This comparison is somewhat decep- tive because the 1983 budget included several items (most notably "space and facilities") that were not included in the fiscal 1940 budget. If these items are excluded from the 1983 budget, the salaries of sup- port personnel account for 60.0 per cent of the budget. 1 158 Judicature Volume 70, Number 3 October-November, 1986 TITX 0022294
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prison s}steins in 28 states." Prisoners' rights under other amendments involve declarations about specific protections and permitted activities for incarcerated offenders. In contrast, the Eighth Amend- ment's general phrasing has been inter- preted to require a variety of affirmative obligations on prisons for maintaining constitutionally acceptable conditions. Federal courts evaluate whether pri- son conditions involve "wanton and unnecessary infliction of pain" or result in "unquestioned and serious depriva- tions of basic human needs."45 Judges have drawn from these standards to intervene on behalf of prisoners because of denial of medical care,46 excessive soli- tary confinement," and egregiously un- safe, overcrowded, and unsanitary con- ditions.48 The Supreme Court has stated that judges do not intend to make pri- sons comfortable because harsh and res- trictive conditions are a part of the penalty that offenders must pay for their crimes against society;49 the judge's role is to determine if these conditions are cruel and unusual under "contemporary standard[s] of decency."50 If a constitu- tional violation is found, the judge must consider and order appropriate remedies. It is not difficult to find cases identify- ing unconstitutional conditions that would elicit universal denunciation, even from critics of judicial activity in pri- soner litigation, regarding the severe deprivations and abuses to which in- mates have been subjected. An example of such conditions is evident in the des- cription of the Texas prison system in Ruiz v. Estelle.51 The district court des- cribed at length the conditions fostering violence, fear, and deprivation of medi- cal care. The factual circumstances within a number of prisons fit Justice Rehnquist's recognition of "deplorable conditions...[which] the federal courts have rightly condemned."52 Because Rehnquist is an outspoken opponent of intervention into prison operations, his statement seems to indicate a consensus on the existence of unconstitutional con- ditions in prisons. However, agreement on the existence of rights violations does not translate into consensus about the proper role of judges in developing remedies for these violations. A frequently cited example of allegedly excessive judicial control over state pri- sons is the class action prisoner litiga- It is not difficult to find cases of unconstitutional conditions that would elicit universal denunciation. tion in Alabama that led then U.S. Dis- trict Judge Frank Johnson to issue ex- tremely detailed and comprehensive remedial orders.s' Johnson's orders re- quired extensive changes in virtually all aspects of institutional operations in- cluding cell sizes, staff-inmate ratios, and meal preparation.59 Similarly broad j udicial remedies have been ordered in other states, including Texas55 and Arkansas.56 Such broad remedial orders raise the most serious questions about whether judges have gotten involved in creating policies that have nothing to do with constitutional rights.57 Broad, detailed orders by judges that affect the daily operations of prisons reveal the weaknesses of courts' institu- 44. 13 National Council on Crime and Delin- quency, CRIMINAL JUSTICE NEWSLETTER No. 5, March 15, 1982, cited in Herman, lnstitutional Lit- igation in the Post-Chapman World, 12 N.Y.U. REV. L. & Soc. CHANGE 299 n. 4 (1984). 45. Rhodes v. Chapman, 452 U.S. 337,347 (1981). 46. Estelle v. Gamble, 429 U.S. 97 (1976). 47. Hutto v. Finney, 437 U.S. 678 (1978). 48. E.g., Ruiz v. Estelle, 503 F.Supp. 1265 (S.D. Tex. 1980); 679 F.2d 1115 (5th Cir. 1980); cert. denied, 103 S.Ct. 452 (1983); modified on reh'g, 688 F.2d 266 (5th Cir. 1982); cert. denied, 103 S.Ct. 1438 (1983). 49. Rhodes v. Chapman, 452 U.S. 337,347 (1981). 50. Id. 51. Ruiz v. Estelle, 503 F.Supp. 1265, 1391 (S.D. Tex. 1980). "... it is impossible fora written opinion to convey the pernicious conditions and the pain and degradation which ordinary inmates suffer within [unconstitutionally operated prisons]-the gruesome experiences of youthful first offenders forcibly raped; the cruel and justifiable fears of inmates wondering when they will be called upon to defend the next violent assault; the sheer misery, the discomfort, the wholesale loss of privacy for prisoners housed one, two, or three in a forty-five 148 Judicature Volume 70, Number 3 October-November, 1986 tional capacities for implementingcom- prehensive administrative and policy changes. Donald Horowitz has docu- mented how judges disregard costs, lack necessary factual information and a com- prehensive understanding of the rele- vant institutional problems, and are un- able to adequately enforce and supervise compliance measures.58 In prison cases, these weaknesses in judicial capacity can lead to unintended consequences, such as an increase in violence, when ordered reforms begin to occur.59 In addition, federalism concerns loom large because broad federal court orders mandating expensive changes in prison conditions can significantly affect the state budge- tary process.60 These factors seem to imply that, for practical policy reasons, courts should follow Rehnquist's ad- monition that judges not become "in- creasingly enmeshed in the minutiae of prison operations. "61 Other studies of court interventions into prison systems yield differing con- clusions about the practical effects of federal judges' actions. The reforms im- plemented in prisons with unconstitu- tional conditions, rather than following from strict judicial directives, can actu- ally develop from negotiations and com- promise among state officials, the judge, and interested parties.62 The appoint- ment of masters to monitor implementa- tion of remedies can add flexibility to the process of correcting unconstitutional conditions.61 Although judge-ordered prison reforms lead to increased spend- ing on corrections, states under court order still spend less per prisoner than foot cell or physical suffering and wretched psycho- logical stress which must be endured by those sick or injured who cannot obtain medical care...." 52. Bell v. Wolfish, 441 U.S. 520, 562 (1979). 53. Pugh v. Locke, 406 F.Supp. 318 (M.D. Ala. 1976), aff'd as modi fied, 559 F.2d 283 (5th Cir. 1977), rev'd in part on other grounds, 438 U.S. 781 (1978) (per curiam). 54. Pugh v. Locke, 406 FSupp. at 334, 335. 55. Ruiz v. Estelle, 503 F.Supp. 1265 (S.D. Tex. 1980). 56. Finney v. Mabry, 458 F.Supp. 720 (E.D. Ark. 1978) (consent decree). 57. Glazer, supra n. 6, at 72. 58. See Horowitz, supra n. 8. 59. Alpert, Crouch and Huff, Prison Reform by Judicial Decree: The Unintended Consequences of Ruiz v. Estelle, 9 JusT. Sys. J. 291-305 (1984). 60. Hale, Federal Courts and the State Budgetary Process, 11 AD. & Soc'y 357-68 (1979). 61. Bell v. Wolfish, 441 U.S. 520, 562 (1979). 62. Yarbrough, The Political World of Federal Judges as Managers, 45 Pue. AD. REV. 660, 666 (1985). 63. See Note, "Mastering" Intervention in Pri- sons, 88 YALE L. J. 1062 (1979). TITX 0022284
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r laN, to assure that husbands vcho rape their wives be brought to justice, or to protect the autonomy and bodily integ- rity of married women. Rather, as a properly diligent criminal defense attor- ney, she was doing her best to secure the reversal of her client's conviction. By voiding the marital exemption while at the same time affirming Liberta's con- viction for rape, the court of appeals assured that Howe won the battle but lost the war. It may be tempting at first glance to view this outcome as justice triumphant. The court's judgment both assures that a rapist receives the punishment he de- serves and removes an oppressive anach- ronism from the statute books. But we cannot long have it both ways. The court of appeals' message to lawyers such as Howe is, in effect, "Don't bother chal- lengingunconstitutionally narrow crim- inal laws. You may be right, but it won't do your client any good. Because of pub- lic policy and legislative intent favoring punishment of the guilty, his conviction will stand anyway." The simple fact is that if it does the client no good, if the conviction stands anyway, the lawyer will not assert the claim. And in the case of a criminal statute, if the defense attor- ney does not raise a constitutional claim, there is no one else in our system of jus- tice who will, because there is no one else who can. Neither a victim of marital rape, nor the government, acting as prosecutor in her behalf, could have done anything to prompt judicial review of the marital exemption. Any attempt to prosecute a husband for raping his wife without a statute making that act a crime would I quickly (and properly) have been re- buffed as a violation of due process and of the constitutional prohibition of ex post facto laws.2t In short, we depend on lawyers such as Howe to point up the 2l. U.S. Const., art 1, §9, cl. 3. 22. The constitutionality of the pension offset atception was challenged in seven cases, all but one (iled prose. Webb v. Schweiker, 701 F.2d 81(9th Cir. 198.4), cert. granted, vacated and remanded for con- aderation in light of Heckler v. Mathews sub nom. Heckler v. Webb, 104 S.Ct. 1583 (1984); Rosofsky v. Sdtweiker, 523 F.Supp. 1180 (E.D.N.Y. 1981), prob. N+is. noted, 456 U.S. 959, appeal dismissed, 457 u-S• 1141 (1982); Miller v. Dep't of Health and Huntan Services, 517 F.Supp. 11 92 (E.D.N.Y. 1981); ~oger v. Harris, 1981 Unempl. Ins. Rep. (CCH) 117.754 (D. Md. Mat: 25,198 1); Duffy v. Harris, 1979 UVMpl. Ins. Rep. (CCH) 116,906 (D.N.M. Oct. 23, ~k Wachtell v. Schweiker, No. 80-8022 (S.D. Fla. constitutional flaws in our statutory law, or we depend on no one. For Mathews, the stakes are certainly less serious than for Liberta, but the prin- ciple is exactly the same. So long as the pension offset exemption nullification clause is enforceable, Mathews and his lawyers know that a lawsuit challenging the exception as unconstitutional holds no promise of securing the Social Secur- ity benefits he seeks. He can vindicate his constitutional right to equal treatment only by causing other, wholly innocent, female recipients of Social Security spouse's benefits to forfeit their entitle- ments. Few men in Mathews' position will be so committed to the abstract principle of gender equality or so cal- lous about the consequences of a consti- tutional "victory" to challenge the offset exception in the face of these realities. Even fewer lawyers will be anxious to litigate claims which hold no promise of tangible return to their clients.22 The Liberta and Mathews courts obvi- ously did not intend their decisions to obstruct access to judicial review. Rather, in their zeal to defer to legislative reme- dial preferences and, in Liberta at least, to fashion the most obviously just long- term result, both courts neglected a first principle of American law: at least where the Constitution is concerned, if there's a right, there's a remedy. The importance of this principle is underscored if we assume its opposite- that the Mathews and Liberta courts were correct in denying a meaningful remedy to the litigants before them. Under this assumption, there is substan- tial reason to doubt whether the proper conditions for adjudicating a constitu- tional challenge were met in either case. Perhaps, contrary to Justice Brennan's view, neither Mathews nor Liberta had standing to raise his claim. In any event, by failing to address the harms suffered Jan. 26, 1982), appeal filed, No. 82-5552 (11th Cir. Apr. 30, 1982). The single case in which the plaintiff was represented by counsel was Mathews v. Heckler, 1982 Unempl. Ins. Rep. (CCH) ¶14,313 (N.D. Ala. Aug. 24, 1982), reu'd I04 S.Ct. 1387 (1984), where, of course, the constitutionality of the severability clause was also challenged. 23. 5 U.S. (1 Cranch) 137 (1803). 24. 3 W. Blackstone, Commentaries, •23, •109. 25. Marbury v. Madison, 5 U.S. (I Cranch) 137, I63 (1803). 26. 327 U.S. 678 (1946). 27. Id. at 684. 28. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). by the parties, both decisions begin to re- semble advisory opinions more than adjudications of real controversies. Right to a remedy The roots of the proposition that the fashioning of a remedy for a constitu- tional wrong is essential to the process of judicial review can be traced at least as far back as Blackstone and, through him, to Marbury v. Madison.23 In the Commentaries on the Laws of England, Blackstone wrote: It is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit, or action at law, when- ever that right is invaded.... It is a settled and invariable principle in the laws of England, that every right, when withheld, must have a remedy, and every injury its proper redress.29 In a similar vein, Chief Justice Mar- shall wrote in Marbury: The very essence of civil liberty lies in the right of the individual to claim the protec- tion of the laws whenever he receives an injury.... The government of the United States has been emphatically termed a government of laws and not of men. It will certainly cease to observe this high appel- lation if the laws furnish no remedy for the violation of a vested legal right.25 More recently, the Supreme Court's landmark 1946 decision in Bell v. Hood26 underscored the centrality of a court's remedial power to the exercise of the judicial function. In holding that a damage action against FBI officers for violations of the Fourth and Fifth Amendments was within the federal question jurisdiction granted to district courts, the Court, speaking through Jus- tice Black, noted that: It is established practice for this Court to sustain the jurisdiction of federal courts to issue injunctions to protect rights safe- guarded by the Constitution and to re- strain individual state officers from doing what the Fourteenth Amendment forbids the state to do. Moreover, where federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies to grant the necessary relief. And it is also well settled that where legal rights have been invaded anda federal statute provides for a central right to sue for that invasion, federal courts may use any available remedy to make good the wrong done.27 Six years later, in the Steel Seizure case,28 the Court applied these principles to sustain a district court's issuance of a TITX 0022289 153 a i
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mentioned above, only 8 per cent of the 1,649 cases in the CLRP sample went to trial (and some fraction of that 8 per cent settled before the trial was completed). The common assumption is that cases not resolved by trial are simply settled. However, this is not an accurate descrip- tion of what goes on in ordinary civil litigation. There are a variety of ways between trial and settlement by which a case can be resolved. Based on the court record, one cannot tell definitively whether a case was set- tled; one can, however, determine the formal mode of termination, and there are several modes other than trial that Table 1 Modes of termination Per cent Type Description 7% tried trial by court-decision for plaintiff trial by court-decision for defendant trial by jury-verdict for plaintiff trial by jury-verdict for defendant Federal Rule 42: liability by jury, damages by judge 2 arbitrated arbitration award for plaintiff arbitration award for defendant 9 decided order enforcing summons for documents remanded to state court remanded to administrative law judge remanded to administrative agency summary judgment for plaintiff summary judgment for defendant judgment non pros stipulated dismissal (after judgment) 4 dismissed improper pleadings for cause failure to state a claim lack of jurisdiction lack of diversity jurisdiction denial of pauper status expiration of statute of limitations 6 defaulted default judgment for plaintiff 8 dismissed moot for removed/transferred to another technical jurisdiction reason suspended for inactivity other dismissal 63 'settled" withdrawn voluntary dismissal (before pretrial) voluntary dismissal (after pretrial) stipulated dismissal (before judgment) dismissed, failure to prosecute stipulated judgment consentjudgment settled in arbitration settled, discontinued, ended settled, discontinued, ended in conference divorce decree 5 other disposition order other not ascertained clearly involve significant actions on the part of the j udge or another actor carry- ing out an adjudicatory function. For purposes of analysis, I have defined three categories between trial and settlement that I believe are indicative of an adjudi- catory function being invoked. I have labeled these categories as arbitrated (limited to cases from the Pennsylvania state courts which have a mandatory arbitration rule for certain categories of cases), decided (cases terminated by a summary judgment or something equi- valent), and dismissed for cause (cases terminated by a ruling on a motion that is not simply technical in nature). Table 1 shows the complete set of termination codes used in the field and how I grouped those codes into categories, plus the per- centage of cases in each category; note that because each case could involve multiple parties, and the termination vis-a-vis each party could be different, there can be multiple termination types Figure 1 Adjudicatory motions Motion to Proceed as Class Action Motion to Exclude Evidence Motion to Exdude Witness Motion to Quash Motion to Dismiss or (in the alternative) for Summary Judgment Motion to Dismiss for Failure to Join Party Motion to Dismiss for Failure to State Claim Motion to Dismiss for Improper Pleadings Motion to Dismiss for Improper Venue Motion to Dismiss for Lack of Jurisdiction Motion to Dismiss for Lack of Diversity Jurisdiction Motion to Review Magistrate's Findings Motion for Summary Judgment Motion for Summary Reversal Motion to Strike Motion for Preliminary Injunction Motion for Temporary Restraining Order Motion for Injunction for a given case (and therefore the per- centages do not add to 100). One sees in the table that only 7 per cent of cases terminated through trial (down slightly from the 8 per cent that went to trial ). Of more interest is the fact that an addi- tional 15 per cent of cases terminated through arbitration, decisions, or dis- missal for cause; thus almost a quarter of the cases terminated through a decision of an adjudicator (and this excludes default judgments). But this is not the end of adjudicatory involvement. Many cases mav be settled because of an adverse decision on the part of a judge. I have no way of know- ing with certainty the role of specific decisions, but I can look at the frequency of rulings on motions that might lead to a decision to settle. In the court record data collected by CLRP, there is detailed information on the types of motions filed in each case. I identified one set of motions as indicative of a significant, substantive decision on the part of the judge that might be instrumental in leading to a settlement; specifically, I included all motions to dismiss where an explicit basis for dismissal was given (except for consensual dismissals, dis- missals for failure to prosecute, and dis- missals for insufficient service), all mo- tions for summary judgment, motions for immediate judicial intervention (e.g., for restraining orders and the like), and motions that could materially affect a party's ability to present its case (e.g., motions to exclude evidence or witnesses, motions to proceed as a class action). Figure 1 shows a list of these motions. After selecting the motions to be exam- ined, I looked at the frequency of rulings on those motions in the 78 per cent of cases that were not terminated by trial, TITX 0022299 163
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Adjudication to settlement: shading in the gray It is often assumed that cases not tried are simply settled. However, a recent study indicates there are numerous judicial actions in between that can result in termination. By Herbert M. Kritzer T he role of the judge in the American judicial system is changing. Where historically, the judge "adjudicated" (or oversaw the adjudication by means of a jury trial) those cases that did not fall out of the system before they got to him (by abandonment, settlement, or some other means), the men and women on the bench today find themselves called upon to be active as case managers,' as over- seers of complex court decrees affecting public institutions,z and as mediators to This is a revision of a portion of a paper that was presented at the Conference on Frontiers of Research on Civil Litigation, Institute of Legal Studies, Uni- versity of Wisconsin Law School, Madison, Wiscon- sin, September 20, 1985; sections of this paper were also presented at the Workshop for Researchers Studying Judicial Promotion of Settlements, Amer- ican Bar Foundation, Chicago, Illinois, November 7-8, 1985. The research reported in this paper has been supported by NSF Grant No. SES-8820129; the collection of the data was funded by a United States Department of Justice Contract JAOIA-79-0040 and National Institute of Justice Contract J-LEAA- 003-82, with supplemental support from the Uni- versity of Wisconsin Graduate School and the Uni- versity of Wisconsin Law School. l. See the recently revised FEDERAL RULES OF CIVIL PROCEDURE, Rule 16; Grauand Sheskin, Rul- ingoutdelay: the impact of Ohio's rules of superin- tendence, 66 JUDICATURE 108 (1982); Resnik, Mana- gerial Judges, 96 HARV. L. REV. 376 (1982); Schwarzer, Managing civil litigation: the trial judge's role, 61 JUDICATURE 400 (1978); Peckham, The Federal Judge as a Case Manager: The New Role in Guiding a Case from Filing to Disposition, 69 CALIF. L. REV. 771 (1981). 2. Chayes, The Role of the Judge in Public Law Litigation, 89 HARV. L. REV. 1281 (1976); Eisenberg and Yeazell, The Ordinary and the Extraordinary in Institutional Litigation, 93 HARv. L. REV. 465 (198(1): Diver, The Judge as Political Powerbroker: Superintending Structural Change in Public Insti- spur along the settlement process.' My interest in this article has to do with the last of these three "new" roles-the judge's role in settlement. A variety of recent work has looked at what judges do in regard to settlement,' and at what impact those efforts have.s At the same time, a number of writers have questioned the conceptual distinc- tion between adjudicated outcomes and negotiated outcomes,6 have raised ques- tions about settlements that result from judicial intervention,' or simply have tutions, 65 VIRGINIA L. REV. 43 (1979); Horowitz, THE COURTS AND SOCIAL POLICY (Washington, DC: Brookings Institution, 1977). 3. Aldisert, A Metropolitan Court Conquers Its Backlog-Part 11. From Pure Pretrial to Compul- sory Settlement Conferences, 51 JUDICATURE 247 (1968); Will, Merhige, and Rubin, The Role of the Judge in the Settlement Process, 75 F.R.D. 203 (1977); Nathons, Civil Settlement Conference, 9 FORUM 75 (1973); Lynch, Settlement of Civil Cases: A View from the Bench, 5(1) LITIGATION 8 (Fall 1978); Galanter, The emergence of the judge as a mediator in civil cases, 69 JUDICATURE 256 (Febru- ary-March 1986); Galanter, ". .. A Settlement Judge, Not a Trial Judge": Judicial Mediation in the United States, 12 LAW & Soc'r REV. 1 (1985); Menkel-Meadow, Judges and Settlement: What Part Should Judges Play?, 21(10) TRIAL 24 (October 1985); Provine, SETTLEMENT STRATEGIES FOR FED- ERAL DISTRICT JUDGES (Washington, DC: Federal Judicial Center, 1986); Brazil, SETTLING CIVIL SUITS: LITIGATORS VIEWS ABOUT APPROPRIATE ROLES AND EFFECTIVE TECHNIQUES FOR FEDERAL JUDGES (Chi- cago: American Bar Association, 1986). 4. Kritzer, The judge's role in pretrial case pro- cessing: assessing the need for change, 66 JUDICA- TURE 28 (1982); Ryan, Ashman, Sales, and Shane- DuBow, AMERICAN TRIAL JUDGES: THEIR WORK STYLES AND PERFORMANCE (New York: The Free Press, 1980) at 182; Will et al., supra n. 3; Schiller & Wall, Judicial Settlement Techniques, 5 AM. J. OF TRIAL AD. 39 (1981); Title, New Settlement Tech- taken issue with the desirability of set- tlements in the first place.e One unan- swered question in all of the discussions of the settlement/adjudication dichot- omy, and how judges should respond to it, is the extent of the real-life dimen- sions of the distinction. It is well known to those involved in the courts, either as practitioners or as researchers, that very few cases get the full adjudicatory treatment ending with a verdict (by either judge or jury) and a judgment. The figures commonly cited niques for the Trial Judges, 18 JUDGES J. 42 (1979). 5. Wall & Schiller, Judiciallnvolvement in Pre- Trial Settlement: A Judge !s Not a Bump on a Log, 6 AM. J. OF TRIAL AD. 27 (1982); Stevenson, Watson, and Weissman, Thelmpact of Pretrial Conferences: An Interim Report on the Ontario Pretrial Confer- ence Experiment, 15 OSGOODE HALL L. J. 591 (1977); Watson, "Judicial Mediation: The Results of a Controlled Experimen t in the use of Settlement- Oriented Pretrial Conferences," paper presented at the Annual Meeting of the Law & Society Associa- tion, Boston, June 7-10, 1984. 6. See Eisenberg, Private Ordering through Ne- gotiation: Dispute-settlement and Rulemaking, 89 HARV. L. REV. 637 (1976); Mnookin and Korn- hauser, Bargaining in the Shadow of the Law: The Case of Divorce, 88 YALE L. J. 950 (1979); Cooter and Marks, Bargaining in the Shadow of the Law: A Testable Model of Strategic Behavior, 11 J. OF LEGAL STUD. 225 (1982). 7. See Bedlin and Nejelski, Unsettling issues about settling civil litigation: examining "dooms- day machines," "quick looks", and other modest proposals, 68 JUDICATURE 9(1984); see also, Fiss, infra n. 8. 8. Fiss, Against Settlement, 93 YALE L. J. 1072 (1984); Alschuler, Mediation with a Mugger: The Shortage of Adjudicative Services and the Need for a Two-Tier System in Civil Cases, 99 HARV. L. REV. 1808 (1986). But see McThenia and Shaffer, For Reconciliation, 94 YALE L. J. 1660 (1985); Menkel- Meadow, supra n. 3. TITX 0022297 161
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dLr I I greater than I had expected. It is an awesome responsibility for any human being to resolve disputes between fellow citizens, to be the ultimate arbiter of matters affecting the life, liberty and property of others. There is an addi- tional responsibility that reaches even beyond a single individual in a single case, and that is a responsibility to the fabric of the law-the relationship of a decision to what has gone before, its immediate ripplings, and its preceden- tial impact for the future. And if that were not a sufficient challenge, the issues present themselves to us in a dazzling array of legal subjects with which no human being could possibly have ac- quired an easy familiarity before ascend- ing the bench. On any one day of argument in the court of appeals, for example, our seven cases are likely to include a criminal law question, a tax certiorari proceeding, en- vironmental law issues, a teacher dis- charge, a personal injury case, and a child custody matter. A memory forever seared in my mind goes back to my first week on the bench, when, fresh from a commercial litigation practice in New York City, I watched a state highway bill- board condemnation case come on for reargument, the height of the briefs before each of us all but obscuring our view of counsel. Many times since that day the particu- lar difficulty of a case has left me with that same clammy feeling. I have often thought of the advice Lord Mansfield gave to a new magistrate: Listen care- fully, decide firmly, and never, never give a reason. But quick fixes like that don't work on the court of appeals, where we view as an important part of our function always giving reasons for our decisions. Apart from the particular warmth and effectiveness of my colleagues, I can think of two things that have helped me over the past three years. First is the pas- sage of time. There is undoubtedly a good deal of wisdom in our tradition of preparing judges at the bar and training them on the job. I do not spend fewer hours in anguish over reaching the right result in particular cases, but it gives me some comfort that I have marked three years on the court with the law of the state intact. Second, because the process Presupposes a mental picture of what one is doing and why one is doing it, I Public comment can certainly be taken into account without cost to the independence of a judge's decision. read extensively about the experiences of others, whether in works of jurispru- dence, or the anecdotal and biographical references, or the studies of political sci- entists and sociologists, and I invariably gain greater insights from all of these sources. For all the times I have read The Nature of the Judicial Process as a law student and lawyer, Cardozo's words have never had more meaning. I have come to appreciate his observation that, while there may be difficulty in categorizing them, many of our cases either can only be decided one way, or concern law that is certain, with only the application doubtful. It is that remaining sliver of cases that is what he has called a judge's "serious business," calling for creativity and wisdom that are, hopefully, deve- loped and refined over the years. This morning's discussion on judicial independence and j udicial elections in- terested me greatly. While as a guberna- torial appointee with a 14-year term I do not, in decisionmaking, fear reprisal by the electorate, the discussion reminded me that I have, as a judge, encountered another phenomenon I did not expe- rience as a lawyer: the expression of pub- lic opinion, not at the polls but at the newsstands. However intense and impor- tant the battle, few lawyers need worry that their briefs, arguments or strategies will be published, let alone be a subject of editorial comment, or letters to the editor, or dissection in learned journals. This phenomenon also comes as no sur- prise: public comment goes with the turf. Responses to decisions are healthy signs of an interested, informed society, and an important part of the develop- ment of the law. But for a new judge, it's not always easy to keep that in mind. Professor Archibald Cox's discussion of judicial independence ("The Indepen- dence of the Judiciary: History and Pur- poses," San Francisco Barrister, Febru- ary, 1986), implying freedom from any outside pressure-personal, economic or political-leads me to observe that the distinction between legitimate factors to be considered and illegitimate influences lies in the word "pressure." Public com- ment, for one example, can certainly be taken into account by a judge without any cost to the independence of a deci- sion. This morning's discussion has also caused me to reflect more generally on the related subject of "intellectual disin- terestedness" and the role of a judge's personal beliefs, philosophy and atti- tudes, but that is much too large and indigestible a topic for lunch. I am a lover of statistics and record- keeping and, over the past three years, I have kept close count of the various com- ments made to me, because I early ob- served that they were falling into pat- terns, and perceived that they might have jurisprudential significance. I'm pleased to report that the front-runner has remained the same all along. The most-repeated comment since I ascended the bench has been, "Goodness, you are tall." While I fear that I must be growing in ways I had not anticipated for my size to have attracted such notice, I now worry about growing out of my robes as well as growing into them. But I've rec- onciled myself to the prospect because, if this continues, over time I could even become one of those often talked-about but rarely seen "giants of the law." The second most popular remark, however, is the comment I'd like to leave you with today. Four thousand twenty-four times -ten times today-I've been asked, "How do you like it?" It's a question I don't mind over and over, because I so enjoy answering it: in my entire profes- sional life I have never been more chal- lenged, or deeply satisified, or more excited or enthusiastic than in these past three years. 0 TITX 0022302 167 t V f
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My "freshman years" on the court of appeals by Judith S. Kaye Editor's note: Judith S. Kaye, a former director of AJS, was appointed an asso- ciate judge of the Court of Appeals of the State of New York (that state's highest court) in 1983. Because of the Society's longtime interest in the process of judi- cial socialization, Judge Kaye was in- vited to reflect on her early years on the court in an address to the joint luncheon of AJS and the National Conference of Bar Presidents during the annual meet- ing in New York on August 9, 1986. A slightly condensed version of her re- marks is presented here. B y coincidence, today's occasion falls at the third anniversary of my nomination to the court of appeals by Governor Mario Cuomo. In those three years I have moved from an active commercial litiga- tion practice in New York City to the number seven seat on the theretofore dis- tinguished court of last resort of this state, to number four, and upon the un- happy occasion of Judge Bernard Mey- er's retirement this year, I will become number three of seven, seated just to the left of the chief judge. I understand your curiosity, both personal and professional, about what I've been doing since I left your midst, and since I last attended the joint luncheon of the American Judica- ture Society and Conference of Bar Pres- idents in August 1983. On a professional level, I am well aware of your long inter- est in the orientation and socialization of judges, because the success of the adjust- ment of new judges to life on the bench profoundly affects the quality of Ameri- can justice. Frankly, I share your curios- ity about my adjustment to life on the bench, so I thank you for affording me this opportunity to look back on the past three years. I noted in a Judicature article dealing with the transition from advocate to arbiter (February, 1979) that there are few studies of on-bench socialization. Most of what has been written is anecdotal or biographical, and I can appreciate why this is so. The subject does not readily lend itself to principles of wide applica- tion. Apart from the many variations within trial and appellate courts, I would guess that the socialization process, like the j udging process, is dif f eren t for every judge. But yet the general subject of adaptation to the judicial role is natu- rally one of interest. First, there is un- questionably common ground in the transition process. For one thing, every judge goes through it. Second, even while methods may be unique-while the answers to problems are in the end individual and singular-it is useful and helpful to know that the questions are shared by others. In varying degrees what must of course be common to all of us in transition from advocate to arbiter is a cataclysmic physical change. We are overnight trans- formed from seasoned professional to rank amateur. The physical change be- tween the practice of law and the appel- late bench is particularly dramatic. As a lawyer, my day was crowded with ap- pointments, meetings, court appear- ances, deadlines-and superimposed on it all was the relentless telephone. Lunch was an event of major significance. At my firm, we accounted for time by six- minute intervals, or tenths of hours. But overnight, when what had been a law office magically became "chambers," quiet descended. It took two days before we learned that our telephone was not receiving any incoming calls. I can hear the systematic squeaking of a yellow highlighter when one of my law clerks in the next room marks a brief. My appoint- ment book has become a useless appen- dage. On one of the very few lunch dates I had recently, a lawyer told me how thrill- ing it was to have lunch with a judge of the court of appeals. He and I have had dozens of lunches together in the past, and quite honestly, neither of us found anything exceptional in the experience. Now, instead of six-minute intervals or tenths of hours I think in terms of whole days. The day in home chambers is equally long or longer than an "office" day but it is mine-solely mine-rather than the hostage of adversaries, judges, clients and partners. While the thunder- ous quiet unquestionably takes some getting used to, I enjoy being the master of my own day, and I like having the long periods of silence for research, reflection and writing. Admittedly, not all of the isolation of home chambers is welcome: I often miss the opportunity enjoyed by lawyers in large firms to dis- cuss a problem with the specialists within the firm. And I miss the extensive bar association involvements I had as a law- yer, which I have chosen to rule out of my life just now both because of the time demands of our docket and because I am wary of inviting conflicts. We have a great tradition on our court, which has helped enormously with the socialization process: when we convene in Albany-which is generally two weeks out of every five-the judges meet for breakfast every morning in the court- house at 7 a.m., and we have our dinners together, before returning to chambers in the evening. These are purely social occasions, where the closest we get to business is perhaps a bit of chitchat about events around the courthouse. Then, too, the fact that we are a nonresi- dent, plenary bench promotes quick bonding. In Albany, we are all away from hearth and home, with a huge case- load and the same seven of us to work our way through it. Every case is a matter to be resolved in common. We spend a major part of our Albany days in confer- ence, engaged in the sometimes bruising but miraculously solidifying process of trying to reach a consensus. While the physical change from com- mercial practice to the appellate bench is cataclysmic, I have not found that to bea difficult adjustment. Indeed, it is utter bliss. The difficult adjustments have been in what I do. A different role The fundamentally different rolesof law- yer and judge are of course readily appar- ent and came as no surprise. A lawyer works to advance the client's interest while a judge has only to reach the best result available within the facts and the law. I do not suggest for a moment that I find the judge's role easier; indeed (as others similarly situated have observed) the difference, and the difficulty, are far { 166 Judicature Volume 70, Number 3 October-November, 1986 TITX 0022303
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r` Tabie 2 Modes of adjudication by area of law Mode of adjudication All cases Torts Contract/ commercial Real property Domestic relations Business regulation Clvii riqhts/ civilliberties/ discrimination Government action Government benefits Tried 9% 10% 7% 8% 25% 5% 15% 8% 4% Decided 13 8 10 13 3 12 21 22 70 Ruled 9 6 10 7 4 18 20 23 12 Defaulted 5 3 10 14 6 5 1 2 1 Not adjudicated 64 75 63 58 61 61 43 46 10 (N) (1648) (654) (512) (144) (119) (145) (109) (65) (80) Note that percentages (which add down) may not add to 100 due to rounding. Table 3 Modes of adjudication by court All cases Torts Contract Property Mode of adjudication fed. state fed. state fed. state fed. state Tried 6% 12% 8% 11% 6% 8% 6% 10% Decided 20 6 12 5 14 8 19 10 Ruled 13 4 11 2 14 6 8 7 Defaulted 3 7 0 4 6 14 15 13 Not adjudicated 57 71 70 78 60 66 53 60 (N) (809) (839) (239) (415) (280) (232) (53) (91) Chi square 142.0 ' 40.4' 24.72' 3.2 Note that percentages (which add down) may not add to 100 due to rounding. 'p<0001 arbitration, decision, or dismissal for cause. Approximately 11 per cent of the subset of cases involved such motions; this represents an additional 9 per cent of the cases in the overall sample.15 Recog- nizing that I may now be overestimating the importance of some of the motions that I have counted (and that some read- ers may object to the inclusion or exclu- sion of particular types of motions in this part of the analysis), let me add this figure to the earlier 22 per cent of cases; I now have evidence of judicial involve- ment in the termination of as many as 31 per cent of the cases in the CLRP sam- ple.16 This is a very long way from the original 8 per cent figure.17 Variations Let me now turn to a brief examination of variations in modes of termination by area of law and types of court. To do this, I have defined a hierarchy of modes of adjudication. This hierarchy has five categories, with each case coded to go into the "highest" category present for the case (recall that because of multiple parties a case could involve several kinds of terminations). The five categories are: • trial or arbitration ("tried") • decided or dismissed for cause ("de- cided" ) • motion (see Table 2) ruled on ("ruled" ) • default judgment ("defaulted") • other termination ("not adjudi- cated" ). I recognize that my classification of individual cases is not perfect, but I believe that it fairly represents the varia- tion in adjudication that occurs, and that my "adjudication" variable can help in arriving at insights into the vari- ations that exist. Table 2 shows the variations in adjudi- cation by area of law. Note that a case may present several legal issues and thus may be classified into more than one area of law so that some cases appear twice in the table. The three "traditional" areas of torts, contract/commercial, and real prop- erty, plus a fourth area, business regula- tion, all have similar patterns where very few cases are tried, and most are not adjudicated (which I take to mean that, generally, they were settled); the one fig- ure for these four areas that seems to stand out is the high "non-adjudication" rate for torts, 75 per cent. The other four areas-domestic relations, civil rights/ civil liberties/discrimination, govern- ment action (taxation, zoning, political processes, public health and safety, Free- dom of Information Act, and the like), and government benefits (welfare, black lung, disability, other social security)- differ sharply from the other areas, but in varying ways. The higher "trial rate" in domestic relations reflects the require- ment of a formal resolution in divorce cases; while the court record may show an event that is labeled as a trial, it is typi- cally nothing more than the ratification of a settlement agreed upon by the parties. Two areas, civil rights and govern- ment action, have similar patterns with non-adjudication rates around 45 per cent. Clearly, the most unique area is government benefits, which has a non- adjudication rate of only 10 per cent and a "decided" rate of 70 per cent, more than 3 times the decided rate of any of the other areas. The variations here no doubt reflect the kinds of issues the different cases present; most important is the point that the dominance of settlement, with the possible exception of torts, is far from clear in many areas and simply non- existent in others. What about variations by type of court? Given the variations by area of law des- cribed above, and the fact that there are major differences in the kinds of cases filed in state as compared to federal courts, one would expect to observe dif- ferences in mode of adjudication by court. Table 3 confirms this expectation. Cases in state court are more likely to fall into the tried, defaulted, and not adjudi- cated categories; federal cases, in con- trast, are more often in the decided and ruled categories. What does one see when one looks separately at torts, contracts, and property cases?16 The patterns are somewhat weaker within each of the 15. The role of adjudication in those cases that were not terminated through adjudication is rein- forced by the fact that in 10 per cent of them a written opinion was issued. 16. There is yet another 6 per cent of the cases in which motions listed in Figure 1 were filed, but that were never ruled on; in some fraction of those cases, it is likely that settlement occurred in anticipation of the adjudicatory decision that never came. 17. These figures may, in fact, underestimate the role of adjudication (or other forms of j udicial inter- vention) in disposing of cases. When the lawyers who were surveyed were asked about the way the case was processed, 44 per cent said that the case went to trial, (court-annexed) arbitration, were re- solved by a j udicial decision outsideof trial, and/or the judge made one or more important rulings. An additional 8 per cent said that a judge had had "significant" involvement in the case. In other words, the lawyers interviewed said that less than half the cases we were asking them about had been settled without significant court involvement. 18. Each of the other areas of law tend to be found either in the state courts or in the federal courts, but not both. TITX 0022300 164 Judicature Volume 70, Number 3 October-November, 1986
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. I greater than I had expected. It is an awesome responsibility for any human being to resolve disputes between fellow citizens, to be the ultimate arbiter of matters affecting the life, liberty and property of others. There is an addi- tional responsibility that reaches even beyond a single individual in a single case, and that is a responsibility to the fabric of the law-the relationship of a decision to what has gone before, its immediate ripplings, and its preceden- tial impact for the future. And if that were not a sufficient challenge, the issues present themselves to us in a dazzling array of legal subjects with which no human being could possibly have ac- quired an easy familiarity before ascend- ing the bench. On any one day of argument in the court of appeals, for example, our seven cases are likely to include a criminal law question, a tax certiorari proceeding, en- vironmental law issues, a teacher dis- charge, a personal injury case, and a child custody matter. A memory forever seared in my mind goes back to my first week on the bench, when, fresh from a commercial litigation practice in New York City, I watched a state highway bill- board condemnation case come on for reargument, the height of the briefs before each of us all but obscuring our view of counsel. Many times since that day the particu- lar difficulty of a case has left me with that same clammy feeling. I have often thought of the advice Lord Mansfield gave to a new magistrate: Listen care- fully, decide firmly, and never, never give a reason. But quick fixes like that don't work on the court of appeals, where we view as an important part of our function always giving reasons for our decisions. Apart from the particular warmth and effectiveness of my colleagues, I can think of two things that have helped me over the past three years. First is the pas- sage of time. There is undoubtedly a good deal of wisdom in our tradition of preparing judges at the bar and training them on the job. I do not spend fewer hours in anguish over reaching the right result in particular cases, but it gives me some comfort that I have marked three Years on the court with the law of the state intact. Second, because the process Presupposes a mental picture of what one is doing and why one is doing it, I Public comment can certainly be taken into account without cost to the independence of a judge's decision. read extensively about the experiences of others, whether in works of jurispru- dence, or the anecdotal and biographical references, or the studies of political sci- entists and sociologists, and I invariably gain greater insights from all of these sources. For all the times I have read The Nature of the Judicial Process as a law student and lawyer, Cardozo's words have never had more meaning. I have come to appreciate his observation that, while there may be difficulty in categorizing them, many of our cases either can only be decided one way, or concern law that is certain, with only the application doubtful. It is that remaining sliver of cases that is what he has called a judge's "serious business, " cal ling for creativity and wisdom that are, hopefully, deve- loped and refined over the years. This morning's discussion on judicial independence and judicial elections in- terested me greatly. While as a guberna- torial appointee with a 14-year term I do not, in decisionmaking, fear reprisal by the electorate, the discussion reminded me that I have, as a judge, encountered another phenomenon I did not expe- rience as a lawyer: the expression of pub- lic opinion, not at the polls but at the newsstands. However intense and impor- tant the battle, few lawyers need worry that their briefs, arguments or strategies will be published, let alone be a subject of editorial comment, or letters to the editor, or dissection in learned journals. This phenomenon also comes as no sur- prise: public comment goes with the turf. Responses to decisions are healthy signs of an interested, informed society, and an important part of the develop- ment of the law. But for a new judge, it's not always easy to keep that in mind. Professor Archibald Cox's discussion of judicial independence ("The Indepen- dence of the Judiciary: History and Pur- poses," San Francisco Barrister, Febru- ary, 1986), implying freedom from any outside pressure-personal, economic or political-leads me to observe that the distinction between legitimate factors to be considered and illegitimate influences lies in the word "pressure." Public com- ment, for one example, can certainly be taken into account by a judge without any cost to the independence of a deci- sion. This morning's discussion has also caused me to reflect more generally on the related subject of "intellectual disin- terestedness" and the role of a judge's personal beliefs, philosophy and atti- tudes, but that is much too large and indigestible a topic for lunch. I am a lover of statistics and record- keeping and, over the past three years, I have kept close count of the various com- ments made to me, because I early ob- served that they were falling into pat- terns, and perceived that they might have jurisprudential significance. I'm pleased to report that the front-runner has remained the same all along. The most-repeated comment since I ascended the bench has been, "Goodness, you are tall." While I fear that I must be growing in ways I had not anticipated for my size to have attracted such notice, I now worry about growing out of my robes as well as growing into them. But I've rec- onciled myself to the prospect because, if this continues, over time I could even become one of those often talked-about but rarely seen "giants of the law." The second most popular remark, however, is the comment I'd like to leave you with today. Four thousand twenty-four times -ten times today-I've been asked, "How do you like it?" It's a question I don't mind over and over, because I so enjoy answering it: in my entire profes- sional life I have never been more chal- lenged, or deeply satisified, or more excited or enthusiastic than in these past three years. O TITX 0022304 167
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I Named for the founder of the Society, Herbert Harley Awards recognize those who, in their home states or regions, have made major contributions to court improvement. This year's Harley Award winners were; in language from their citations: ArthurJ. England, Jr., former chief jus- tice of the Florida Supreme Court, who "played a key role in formulating the Administrative Procedure Act, a vital and enduring contribution to judicial and legal effectiveness in Florida." Senior Judge Ewing Thomas Kerr of the United States District Court for the Dis- trict of Wyoming, "who continues to serve on the bench..., carrying his full share of ... a docket that is the most cur- rent of any federal court in the United States" Alfred L. Luongo, former chief judge of the United States District Court for the Eastern District of Pennsylvania, for "ceaseless efforts to improve our system of justice" resulting in "a steady lower- ing of litigation costs for the average citizen." Howard Markey, chief judge of the United States Court of Appeals for the Federal Circuit, "Visiting judge in every circuit, sought-after counselor on mat- ters of federal judicial ethics, he still finds time to articulate the role of his court before legislators, lawyers and, most importantly, his fellow citizens." Ross H. Oviatt of South Dakota, "Long a guiding light in improving the administration of justice in his native state, (his) is a name synonymous with the movement to make courts more responsive to citizens." Harry Phillips, chief judge of the United States Court of Appeals for the Sixth Circuit, who "presided over the flowering of the court to which he was so devoted, never sparing himself the ar- duous tasks." (Presented posthumously) Cubbedge Snow, Jr., a Macon, Georgia attorney, who "has, through his com- mitment, given high visibility to the cause of strengthened judicial adminis- tration." Alexander P. Waugh, retired superior court judge of the State of New Jersey, "a teacher of trial judges without peer" and "a model for all trial judges to follow " Senior Judge Alfred T: Sulmonetti of the Circuit Court of Oregon, who has "challenged the conventional wisdom that a judge's only duty is to decide cases," through his teaching at the Na- tional Judicial College. Herbert Lincoln Harley TITX 0022316
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eport to the Members A Message from AJS President, L. Stanley Chauvin, Jr. I At the annual meeting in New York in early August, I reported on several matters to our Board of Directors that I wish to communicate to all members of AJS. While independent of each other, these matters in combination give focus to tasks before us in the year ahead. Almost one year ago, our Executive Vice President, George Williams, informed me of his preference to wind down his AJS responsibilities after serving as staff head for more than a decade. Our regret in losing his leadership is tempered by our appreciation for a task well done. A search for our new executive director is underway and the committee, comprised of William K. Slate, II, Judge Arlin M. Adams and E. N. Carpenter, II, expects to submit its recommendations shortly. I am proud to report an important gain in AJS program activity that helps to fulfill our long-held goals in new ways. While mention of several such programs appears elsewhere in this report, I do want to highlight our recent successes with: • A pilot workshop for journalists-beat reporters assigned to cover the courts; • Our Institute for College Teachers of Government-the multiplier factor is substantial, and college students are learning about the judicial branch in terms equivalent to the executive and legislative branches; • Our conference on the American Jury and the kind of research needed to continue and preserve the jury process. In addition, I remind our members of the great work we have done recently at our 10th National Conference for Judicial Conduct Organiza- tions. Nearly 200 commissioners from throughout the nation attended, eager to learn of the most recent and most critical information on judicial ethics and performance. What more can be said about our great journal, Judicature-the special issue on Alternative Dispute Resolution has become a bible on the subject. Is it any wonder that Judica.ture, in a national study, appears in the top echelon of most frequently cited legal publications. Regrettably, I must report a body blow AJS sustained as a result of the U. S. Supreme Court decision in United States u American Bar Endowment, et al., the effect of which has been to impose a substantial tax liability on us. This liability arises from the long-time AJS member insurance program, income from which the IRS determined was subject to unrelated business tax. It is likely that the settlement of this matter will leave AJS with appreciably diminished reserves. Thus, the task ahead is to rebuild those reserves and restore the fiscal soundness so essential to our future plans. I hope to announce soon important progress in this direction.
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JUDICATURE THANKS... the following Benefactors and Friends who are helping AJS underwrite the cost of Judicature, the Society's journal. Benefactors: $1,000 or more Arnold & Porter Washington, D.C. Cahill, Gordon & Reindel New York, New York Carlton, Fields, Ward, Emmanuel, Smith and Cutler, P.A. Tampa, Florida Perkins Coie Seattle, Washington Potter, Anderson & Corroon Wilmington, Delaware Schnader, Harrison, Segal & Lewis Philadelphia, Pennsylvania Sullivan & Cromwell New York, New York Connell, Foley & Geiser Newark, New Jersey Covington & Burling Washington, DC Davis, Polk & Wardwell New York, New York Duane, Morris & Heckscher Philadelphia. Pennsylvania Fried, Frank, Harris, Shriver & Jacobson New York, New York Kirkland & Ellis Chicago, Illinois Kirkpatrick & Lockhart Pittsburgh, Pennsylvania Kramer, Johnson, Rayson, McVeigh & Leake Knoxville, Tennessee Latham, Watkins & Hills Washington, D.C. Lawler, Felix 8c Hall Los Angeles, California McCutchen, Doyle, Brown & Enersen San Francisco, California Memel, Jacobs, Pierno, Gersh & Ellsworth Los Angeles, California Morrison & Foerster San Francisco, California Thelen, Marrin, Johnson & Bridges San Francisco, California Titus Marcus & Shapira Pittsburgh, Pennsylvania Venable, Baetjer and Howard Baltimore, Maryland Vinson & Elkins Houston, Texas Vorys, Sater, Seymour & Pease Columbus, Ohio West Publishing Company St. Paul, Minnesota Friends: $250-$999 Dunnels, Duvall, Bennett & Porter Washington, D.C. Hahn, Loeser, Freedheim, Dean & Weliman Cleveland, Ohio Pierce, Atwood, Scrnbner, Allen, Smith & Lancaster Portland, hfstirie Tobelistedicteacttissite as a Judi<attue Benefactor or Friend, please arrite: Robert Dr. Raven, Esquire Morrison & Foerster One Market Plaza Spear Stmt Tower San Francisco, California 94105 The purpose of the American Judi- cature Society is to promote the effec- tive administration of justice. To this end, the Society publishes this journal and other literature, holds confer- ences and seminars, maintains an in- formation and consultation service, conducts empirical research, and operates The Center for Judicial Con- duct Organizations. Membership is open to all persons interested in work- ing toward court improvement. JUDICATURE is a forum for fact and opinion relating to all aspects of the administration of justice and its im- provemwtt. Readers are invited to sub- mit articlea, newa, and letters for publi- cation. JUDICATURE, a refereed journal, notifies authors of its decisions within 45 days and publishes most accepted articles within six months. JUDICATURE is indexed in Index to Legal Periodicals, Current Law Index, Legal Resource Index, Criminal Jus- tice Periodical Index, and PAIS BuN letin. George H. Williams Executive Vice President and Director David Richert, Editor David Burnham, Associate Editor JoAnn Ballwanz, Designer Stanley J. Kowalski, Typesetter PROGRAMS FratasN Kalte Z.mata, Anialnt Exeqtprw rr~APft9nw4;,David Riehert, QhsCYr Nqtlqnlt; Kathleen 3arrtpsort, Dpeeai0w vf nAGNI _-1oniFLlbrary; Jettrey M. Wt04im Nt Ih. crrMrie tor JttdklM 0 1- 101 r; Ywttl+s Beyue, SNu1lA Bumtiam, St#Nt Edftu; Kenneth StaKAasnckr,l4brk Lyon, 8tat1A Iey J. Kawtt&titi, '[ypn.tW J.an Steveettort, G'Glra MbMs, A f*aq; Es#WE3arnar, AtarterteNt PurteeK, FsftNat; Fredric Cohen, Grant Wvd, MertSy vYUavief fMorrts. ADM1NtSTRATi(?M t1lNteai tt'erattlt, /L.W.M toNA~Yt~MaMaeK Kl~r Ftatpirt, tant: SWv*tioU6ton, M1ltetiperof +d(orWJutrtyJoell{th, fi.e.ptlonikt: Ghryrstaf Lswls, Mf4MnQitaraAdp AatAltants: Rodney soviAMe. TITX 0022271
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prosecutor. district attornev, and both municipal and district court judges. These sources, already familiar with the mediation concept, were receptive to the program, to its expansion, and to making referrals. Later, a second group of referral sources was contacted. This group con- sisted of all Tulsa County Bar members, governmental-type agencies, and a wide variety of community action, mental health, and social service agencies. Program procedures and policies were revised and new literature written. A new letter was drawn up for use in noti- fying parties that they were a party to a complaint filed in the Early Settlement office and that their presence was neces- sary so that the matter could be resolved in a less costly, and even less lengthy proceeding. To a degree, the letter resem- bles a legal document. Finally, in the expansion of the pro- gram, new mediators were interviewed and trained. Additionally, the pre-exist- ing group of volunteer mediators were required to participate in "refresher" training. Today, the program has ap- proximately 75 professionally trained mediators on the staff, most of whom have committed to two or three media- tion sessions per week. The mediators come from a variety of backgrounds. They include attorneys, social workers, teachers, doctors, law students, and other professionals who possess a great deal of expertise in dealing with people. Once a complaint is filed in the Early Settlement office, letters are sent to both parties notifying them of the time and date of the mediation hearing. The hear- ing itself usually lasts from one to two hours. In the hearing, both sides are asked to state facts and their feelings in regard to the complaint. Then each party is asked what it is that they would like to see happen. Ultimately, the resolution of the problem is the parties' responsibility. At the end of a mediation session, one of two possible outcomes may occur: the parties will not be able to agree on any- thing, or, the parties may reach a mutu- ally acceptable agreement. The program has found that if the parties get to the mediation table, there is an 80 per cent chance that the problem can be resolved at that point. The service is free. A growing program Enlargement of the program began in January 1985. Since then, positive changes can be seen. One such change is the number of cases filed with Early Set- tlement. During April 1984, the number of cases handled was 31; during April 1985, the number of cases that came into the Early Settlement office was 150. Another positive change is the number of cases resolved by Early Settlement contact, without mediation. That is, ap- proximately 35 per cent of the cases are resolved after a respondent receives his or her letter, but before going to the mediation table. Follow-up of cases indi- cates that both parties to the dispute are satisfied with the agreement reached in mediation and all are "living up" to what was agreed upon in mediation. Recently the Dispute Resolution Act was amended when House Bill No. 1552 was passed into law. The new law oper- ates in conjunction with the existing Act. Briefly, H.B. 1552 again authorizes any county, municipality, or state agency to establish mediation programs. The Administrative Director of the Supreme Court of Oklahoma is responsible for promulgating a set of rules and regula- tions, and all programs are under the direction of the Administrative Director. In order to establish and maintain dispute resolution programs through- ou t the s tate, H. B. 1552 provides tha t a$2 fee be collected for all civil cases filed. In addition, when dispute resolution ser- vices are sought, a $5 fee will be charged to the initiating party. If the responding party agrees to participate in the media- tion of the dispute, he or she too will be assessed $5. The fee of the initiating or responding party will be waived upon receipt of an affidavit in forma pauperis executed under oath. Under the new amendtnent, a revolv- ing fund for the state supreme court, the "Dispute Resolution System Revolving Fund," will be created. The fund will be supported by the civil case assessment fee and mediation fees. Monies in the fund will be allocated to eligible centers for dispute resolution programs authorized pursuant to the provisions of the Act. The final draft of the rules and regula- tions that will govern this law is being reviewed by the Supreme Court. Many questions surround the new law. Are nonprofit entities eligible as sponsoring agencies? How much of the funding will centers be able to have returned to them for purposes of operational costs? What criteria will be used in determining which center will be able to receive fund- ing? How many centers may be autho- rized per judicial district? How will a duplication of services be determined? What happens when a respondent agrees to attend mediation, but refuses to pay the fee or file an affidavit? If a center is unable to collect funds, or elects not to collect monies from the parties, will the center incur legal liability to the su- preme court. Although litigation will always be a cornerstone in the American judicial sys- tem, the Oklahoma legislature has been progressive in advancing mediation as an accepted means for dispute resolution throughout the state. The next decade may be a turning point in the implemen- tation of alternative methods of resolv- ing conflicts. Certainly Early Settlement -A Precourt Hearing Program is a posi- tive step in that direction. 0 BONNIE S. KLEIMAN is the Director of Early Settlement-A Precourt Hearing Program for the Municipal Court in Tulsa, Oklahoma. "How long do you think the jury will be out?" TITX 0022308 171
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to consider. The shape that the motion on the mer- its might take in another jurisdiction will depend on many things; two key ingredients, however, should not be over- looked: (a) commissioners should be selected who have or will gain the respect of the lawyers who handle appeals; and (b) there should be close cooperation between the bench and bar in developing and adapting the procedure to the local legal culture. 0 DALE M. GREEN is Chief Judge of Division Ifl, Washington State Court of Appeals and immediate Past Presiding Chief Judge of the court. MICHAEL F. KEYES is Commissioner of the Washington State Court of Appeals, Division 1t1. A step forward: Tulsa's precourt hearing program By Bonnie S. Kleiman Over the years, the judicial decisionmak- Creation of the project ing process has become a costly and often slow-moving method for dispute resolution. In Tulsa County, Oklahoma, small claims court takes between four and six weeks from filing a complaint to the first court appearance; county and state civil cases rarely go to court within a year, and many linger as long as five to ten years before a first appearance; and, federal court may take up to 18 months for a case to be taken to trial. Two factors that account for this backlog are the increasing number of conflicts being brought to court and the time required to resolve these conflicts. In our society, many citizens feel they have the right to unlimited access to the courts, or unlim- ited "days in court." Mediation, an approach to resolving conflict, may provide an efficient and ef- fective alternative to litigation. Tradition- ally, mediation has been a method for dealing with labor-management dis- putes. Not until recently has mediation been used in the settlement of interperson- al, domestic, neighborhood, employ- ment, and commercial conflicts. In the United States, mediation was not consid- ered as an alternative method of dispute resolution until 1978. It was then that the federal government first sponsored three pilot programs to examine the effects of mediation. These projects, known as the "Neighborhood Justice Centers," dem- onstrated that various benefits could be derived from the use of mediation and that mediation could, in fact, be an effec- tive means of dealing with conflict. In 1980 the American Bar Association expressed its interest in the use of media- tion as a means of dispute resolution by forming a Special Committee on Alter- native Means of Dispute Resolution. The following year this ABA Committee published a directory listing 140 media- tion programs. None was located in Kansas, Texas or Oklahoma. In an attempt to address the absence of a mediation program in the region, the City of Tulsa's Municipal Criminal Court, under a grant from the Okla- homa Crime Commission, created Pro- ject Early Settlement in January, 1982. This program was designed to develop and demonstrate a court-sponsored sys- tem for dispute resolution. Ultimately, the "project" became a full-fledged div- ision of the City of Tulsa by being inte- grated into Tulsa's court system. Project Early Settlement was not dependent on outside sources of funding. During its first two years, the project's caseload reached 500 cases per year. This volume indicated that the program was on its way to becoming nationally recog- nized. The success of Project Early Settle- ment led the ABA to select Tulsa as one of the three pilot cities to demonstrate the use and effectiveness of alternative dispute resolution. In 1983, legislation was enacted that established a statewide program entitled the "Dispute Resolu- tion Act. "' The purpose of the Act was to "provide to all citizens of this state [Okla- homa] convenient access to dispute reso- lution proceedings which are fair, effec- tive, inexpensive, and expeditious."z To accomplish this goal, "any county or municipality of the state [was] autho- rized to establish programs for the pur- pose of providing mediation services."' Rules, regulations and guidelines were promulgated by the Administrative Di- rector of the Courts. Most significantly, these rules and regulations established guidelines for agency creden tial ing, med- iator qualifications, referral sources and policies, the types of disputes subject to mediation, as well as a Code of Profes- sional Conduct for Mediators. In addi- tion, "any information received by a mediator or a person employed to assist a mediator, through files, reports, inter- 170 Judicature Volume 70, Number 3 October-November, 1986 views, memoranda, case summaries, or notes and work products of the mediator, [became] privileged and confidential."4 From July through December 1984, the beginning of the third year of opera- tion of the project, the caseload had already exceeded 500 cases. The city found that mediation worked and worked well. Because of the ever-increasing med- iation caseload and the city's commit- ment to mediation, a campaign was launched to expand the project's services. A new name First, Project Early Settlement changed its name. "Early Settlement-A Pre- court Hearing Program," the new name, no longer indicates a temporary or ex- perimental program. The new name implies a less formal means of dispute resolution for those who are using the service in an attempt to avoid the judi- cial system. The name also implies the first step in the process for those who desire their "day in court." Next, the types of cases that were ap- propriate for mediation were evaluated. In the past, mediation had focused on disputes involving money, property, and animal disturbances. The focus was ex- panded to include consumer/merchant, landlord/tenant, criminal complaints (such as misdemeanor assault and bat- tery), neighborhood disturbances (such as harassment and nuisance), larceny- related problems (such as theft, bad checks and vandalism), zoning disputes involving environmen tal issues, and civil disputes (such as contracts, employment, and discrimination). Referral sources were identified and contacted. The new program directoG law-trained, made visits to the police, city 1. 12 o.S. §1801. 2. Id. 3. 12 O.S. §1802. 4. 12 O.S. §1805(a). TITX 0022307
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VIL separate areas (reaching statistical non- significance for property cases), but es- sentially the same pattern still holds, with state cases having a higher proba- bility of falling into tried, defaulted, and non-adjudicated while federal cases are tnore likely to be ruled or decided. In a certain sense, the ruled and decided ca c r- gories are the most judge-centered of the five (because many of the tried cases are heard by juries), and the fact that federal cases are more likely to fall into the judge-centered categories is quite con- sistent with other findings of the Litiga- don Project suggesting that federal court cases tend to be handled in a more judge- centered fashion than are state cases.19 Conclusions The message of this discussion of adjudi- cation is that there is more to "it" than trials. Judicial actions can play an im- portant role in the processing of civil cases, even in the vast majority of cases that never come to trial. In this analysis, I have looked only at cases where there was some actual judicial action; I have not dealt at all with situations where the judicial action was only anticipated. If the role of the judge is identifiable sim- ply from the court record in almost a third of the cases, it is likely that the clearly looming visage of the judge was important in another substantial propor- tion of cases;20 and, it is equally likely that the potential of adjudication was at least a dim specter for yet more cases. While the argument that the law21 or thecoercive influence of potential adjud- ication22 plays an important part in the settlement of cases in our civil courts is not new, it is important to try to grasp the breadth of this influence. Much of 19. See Kritzer, Sarat, Trubek, Bumiller, and McNichol, Understanding the Costs of Litigation: The Case of the Hourly Fee Lawyer, 1984 AM. BAR FOUND. RES. J. 559; and Kritzer, Grossman, McNi- chol, Trubek, and Sarat, Courts and Litigation Investment: Why Do Lawyers Spend More Time on Federal Cases?, 9 Jus. SYs J. 7 (1984). 20. See supra n. 16. 21. See Mnookin and Kornhauser, supra n. 6. 22. See Eisenberg, supra n. 6; Bedlin and Nejel- ski, supra n. 7. 23. See Alschuler, supra n. 8; Danzon and Lillard, THE RESOLUTION OF MEDICAL MALPRACTICE CLAIMS: MODELING AND ANALYSIS (Santa Monica, CA: Insti- tute for Civil Justice, 1982). On the preventive and attticipatory implications of litigation, see Engel ud Steele, Civil Cases in Society: Process and Order in the Civil Justice System, 1979 AM. YAa FaN.. RFS. J. 293 (1979). 24. Compare to Cavanagh and Sarat: "There is >b reason to think that the presence of courts as fora d last resort has acted to discourage the deveiop- The potential of adjudication was at least a dim specter for many cases. the rhetoric surrounding the alternative dispute resolution movement that has recently come into vogue seems to pre- sume that it would be fairly easy to simply move cases out of the courts, and one item of evidence that seems to sup- port this argument is the small percen- tage of cases that actually go to trial. Yet, focusing on the trial rate misses much of the role of adj udication in the resolution of cases brought to the civil justice sys- tem. Very simply put, the settlement of many (if not most) cases relies upon the adj udication of others; to decouple those that settle from those that are adjudi- cated misses the fundamental reality underlying the workings of the system.23 Lawyers who work in the system on a day-in, day-out basis live with this real- ity, whether or not they explicitly realize it. Thus one of the fundamental aspects of the work of the lawyer is to anticipate the adjudicatory alternative. In a sense, much of the discussion of alternative dispute resolution may have the world upside down. It may not be that we need to find alternatives to litigation or ad- judication, but rather that we need to ment of effective alternative dispute resolution mechanisms; given their highly tentative approach to related-party cases, and generally heartfelt will- ingness to hold up or forego decision where a set- tlement may be in prospect, judges can hardly be said to have displaced dispute resolution "competi- tors." As a resul t, it seems unlikely that alternatives to courts will suddenly blossom if only the prospect of judicial intervention can be removed. Indeed, the reverse could be true. Private sector dispute resolu- tion mechanisms may actually be beneficiaries of the mutual incentive for trauma avoidance that court capacity limitations afford related-party dis- putants. Here as in the debtor-creditor context, the elimination of some manifestations of poor court performance could simply trigger new problems of equal or greater societal significaoce." Thinking About Courts: Towsrd and Beyond a Jurisprudence of judicial Competence, 14 LAW & Soc'Y REv. 371 at 402 (1979-80). 25. See rt. 8 supra. understand the impact of adjudication as the alternative to settlement, whether that settlement is reached through sim- ple negotiations, mediation, or what might be called "pseudo-adjudication" (mini-trials, summary trials, etc.).24 For the judge interested in facilitating the disposition of cases, the message of this analysis is that a lot can be accomp- lished by adjudicating, and particularly if that adjudication is carried out in a manner that is predictable so that, where possible, parties are able to anticipate what the decision is likely to be. This is not to say that judges should not be active in the settlement process in direct and/or creative ways. It only means that deciding cases, in whole or in part, helps to settle not only the decided cases, but other cases that may never reach the judge for decision. For those concerned about whether settlement is good or bad, or whether courts in fact do enough adjudicating,25 my analysis suggests that there may be an important distinction between set- tlement for the right reasons and settle- ment for the wrong reasons. Cases that leave the courts through settlement may exit because adjudication has resolved some or all of the key questions in dis- pute, even if the case did not go all the way to trial. Even where no adjudication takes place, settlement may occur for the "right" reasons (e.g., the parties are able to agree upon the valuation appropriate for the case when there is no real dispute over damages). This is not to suggest that some settlements occur for the "wrong" reasons (e.g., one party can no longer afford the costs of litigation, or the delay until the trial forces a party to take a lower settlement now than could be achieved through a jury trial). Rather, one cannot presume that all settlements are wrong or that all adjudicated out- comes are wrong (i.e., the world is not black and white). Thus, in order to advance the discussion of adjudication, settlement, and alternative dispute reso- lution, researchers and reformers must come to grips with the problem of assess- ing when particular modes of resolution are good and bad, and when one mode of resolution is better than another. 0 HERBERT M. KRlTZER is a prot"sorol polit- ica! science at the University of Wisconsin, Madison. TITX 0022301 165
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jwards Justice Award The AJS Justice Award, given for improving the administration of justice at the national level, was presented to Pro fessor Robert B. McKay of New York University School of Law, which he served as Dean from 1967 to 1975. The citation presented to Professor McKay, who is also a Senior Fellow at the Aspen Institute of Humanistic Stu- dies, read, in part, "Bob McKay has been sought out with uncanny regularity whenever insoluble problems surfaced- from Attica to evaluating professional standards. His influence for good is felt on national and international levels and, as with state and local concerns, they revolve about justice, ethics, and the courts to which his professional life has been devoted." Special Merit Citations From time to time the Society confers Special Merit Citations on individuals or organizations active in serving and strengthening the justice system. This year, Special Merit Citations were awarded to: Abner Hunter George, South Dakota radio broadcaster and news director, for long and effective service in publicizing court improvement issues. Florida attorneys William O. E. Henry and James C. Rinaman, Jr., both former presidents of the Florida Bar, and Scha- rlette Holdman, a nonlawyer who is chief investigator for Florida's Office of Capi- i986 Justice Award recipient Robert B. McKay (center) with AJS President L. Stanley Chauvin, Jx (left) and Chairman of the Board Victor G. Rosenblum tal Collateral Review, for their efforts to ensure that every inmate on Florida's Death Row is represented by a lawyer in post-conviction proceedings. Julius A. McCurdy, banker and attor- ney, for his efforts in establishing and presiding over the Citizens Judicial Com- mission of Georgia and his "major im- pact... in improving the effectiveness of the courts in Georgia." Robert D. Myers, a Phoenix lawyer, for proposing and developing a pro tempore judge program in the Arizona Court of Appeals, a program "credited with re- ducing court delays... by twelve to eigh- teen months." The Supreme Court of North Dakota for its role "as a beacon for other states in the areas of court reorganization and unification, judicial administration, and judicial services and planning." The Texas Young Lawyers Association, for "sustained and imaginative leader- ship in developing an outstanding video- tape program designed to prepare young lawyers for admission to practice in the federal courts." TITX 0022315
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I F inances and Membership George S. Frazza The importance and generosity of AJS members is vividly reflected in the finan- cial statement below. Dues and contri- butions account for 72 per cent of all Society income. This support is critical to the success of the Society's programs and activities. Because of this philanthropic support, coupled with staff and cost reductions, the Society ended its fiscal year with a positive balance-for the first time in four years. If we are to continue to oper- ate a fiscally sound American Judicature Society, we must rely on future com- mitments of our generous members and friends. Many members participated in our "Mentor Program" whereby they en- rolled, on a complimentary basis, a friend or colleague under the age of 36. Income Membership and contributions $1,123,496 Programs and projects 52,700 Other (including rent, royalties, dividends & subscriptions ) 394,139 $1,570,335 Expenses Educational and research programs $ 374,871 Judicial conduct programs 241,624 Communications 399,046 General and administrative 198,364 Membership Services 200,338 Development 108,822 $1,534,760 72% 3% 25% 100% 25% 16% 26% 13% 13% 7% 100% The response provided an introduction to AJS to more than 2,800 younger individuals. This program points up the opportun- ity for members to help the Society beyond personal financial support. Ask- ing friends and colleagues to join AJS and its efforts to improve the judicial system is critical to our future and our financial base. If you would enroll just one individual, we could not only dou- ble our base, but also expand the effec- tiveness of AJS through its programs and activities. The beauty of this ap- proach is that it does not cost the Society any program dollars to increase its mem- bership. Please use the card in the front of this issue to help in this important project. Gifts from corporations continue to rise steadily each year. The successful corporate fundraising campaign will be chaired, for the second consecutive year, by George S. Frazza, Vice President and General Counsel of Johnson and John- son. Thirty law firms have indicated their support of AJS by becoming JUDICA- TURE Benefactors-a contribution of $1,000 or more a year. Robert D. Raven of San Francisco's Morrison and Foers- ter chaired this important segment of the Society's fundraising efforts. The importance of contributions over and above dues is gratefully acknowl- edged in the Honor Roll that follows. It is this support from members and friends that enables AJS to expand its horizons and address critical court issues. TITX 0022317
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S Books Fictional and factual juries Anatomy of a Jury: The System on Trial, by Seymour Wishman. Random House, New York, NY 10022. 1986. 322 pages. $17.95. Judging the Jury, by Valerie P. Hans and Neil Vidmar. Ple- num Publishing, New York, NY 10013. 1986. 261 pages. $17.95. by Robert J. MacCoun Seymour W ishman, an experienced trial lawyer, is best known as the author of Confessions of a Criminal Lawyer, an insider's portrayal of the workings of criminal justice. For his new book, Anat- omy of a Jury, Wishman originally hoped to illustrate the workings of the jury system by describing an actual mur- der case. But after attending a seemingly representative trial, Wishman changed his mind. "It had been unrealistic of ine to think that any one trial could furnish the opportunities to cover all the topics I wanted to discuss. I decided to observe several more trials and then bring in some of my personal experiences, and in this way tailor a more 'perfect' case." The result is, in part, a novel, describing the fictitious trial of Leander Rafshoon, a 33-year-old black man on trial for the brutal rape and murder of his employer's wife, a wealthy white woman. Wishman has supplemented the story with a series of didactic digressions on a variety of legal and social issues raised by events in the trial. This is my first (and perhaps only) public review of a work of fiction, but for what it's worth, I found the story to be a pleasant surprise. This is actually Wish- man's second novel (his first was entitled Nothing Personal), and he has written a suspenseful and entertaining tale popu- lated by realistic and compelling charac- ters. Wishman initially provides only a sketchy outline of the case, and allows a number of unexpected complexities to emerge as the trial enfolds. There is a wealth of detail about every major aspect of the trial experience-the compilation of a jury pool list (the "master wheel"), the calendar call, the tedium of the j urors' waiting room, the physical choreography of the trial-supplemented by an account of the human quirks of a system that mar, a professor of psychology at the would otherwise remain hidden behind University of Western Ontario. Both the institutional cloak of decorum and authors have conducted research on the ritual. For example, Wishman observes psychological aspects of the justice sys- that "if a juror knows the right excuse tem, as well as serving as consultants to and is willing to insist on it in the face of law firms and government agencies. a judge's intimidation, it is easy to avoid Hans and Vidmar have provided a servingon a jury All a person has to say is fairly exhaustive review of the jury sys- that he can't hear or see well, or he has to tem, devoting chapters to the history and be home to feed his kids, or that he hates future of the institution and to most of criminals or that he loves them, and that the major controversies regarding the juror can be off the case." jury, including jury representativeness, Despite its title, Anatomy of a Jury is as "scientific" jury selection, jury compe- much about criminal lawyers as it is tence, the role of personal prejudice, jury about criminal juries. Wishman wonder- nullification, recent reductions in jury fully portrays the gamesmanship of the size and decision rules, the insanity de- adversary system, as an experienced prose- fense, and death-qualified juries. After cutor and a savvy defense attorney try to reviewing the prevailing legal and polit- outfox each other. Throughout the trial, ical arguments at the heart of these Wishman explains the clever tactics em- issues, they attempt to distinguish ques- ployed by each side as well as their gam- tions of fact from questions of value and bles and uncertainties. To his credit, he then summarize the relevant empirical frankly acknowledges that much of what data, drawing from research applying passes for shrewdness in trial practice principles of human memory, percep- often stems as much from crude stereo- tion, moral judgment, persuasion, and types and superstitious conditioning as individual and group decision-making from well-winnowed wisdom. to the jury's task. Surprisingly, Wishman's depiction of But Judging the Jury is more than a the deliberation process is relatively brief scholarly reference book. Hans and Vid- and somewhat superficial. This may be mar have fleshed out each chapter with excusable, of course; with the rare excep- fascinating anecdotes culled from many tion of a recent PBS Frontline documen- of the most famous or infamous jury tary and some infamous tape recordings trials, from the trial of William Penn in by the University of Chicago's jury pro- 1670 to the trial of John DeLorean in ject (an endeavor quickly aborted by a 1984. The trials of Angela Davis, Joan McCarthy-era Senate subcommittee), the Little, John Hinckley and others are secrecy of jury deliberation has been used to frame various psychological carefully guarded. In a series of extended questions, making abstract theoretical reference notes, Wishman surveys socio- issues more compelling and concrete. logical and legal research on the jury Like Wishman's book, Judging the Jury system, but he devotes relatively little is entertaining as well as informative. attention to the psychology of jurors and And like Wishman, after considerable juries as fact-finders. He summarizes a scrutiny, Hans and Vidmar give the jury great deal of Kalven and Zeisel's ground- institution a favorable evaluation. breaking social-scientific analysis, The Regrettably, both books went to press American Jury, but only hints at the too early to include an analysis of several "more than 200 experiments and sur- recent Supreme Court rulings involving veys" that have been conducted since it the jury. In Lockhart v. McCree, the was published in 1966. Court upheld the states' right to exclude Fortunately, another recent book, citizens who would never vote for the Judging the Jury, fills this gap. It was death penalty in capital cases. Contrary written by Valerie Hans, a professor of to a prediction made by Wishman, the criminal justice and psychology at the Court provided new safeguards against University of Delaware and Neil Vid- racial discrimination in jury selection in 172 Judicature Volume 70, Number 3 October-November, 1986 TITX 0022309
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r" 0 prominent public issue and a common subject of newspaper and news maga- zine commentary. For judicial conduct organizations, this turn of events offers both a challenge and an opportunity. The opportunity is provided by greater public awareness. Citizens are beginning to learn about judicial conduct organi- zations and what it is that they do. They are no longer relegated to some obscure corner of the legal and governmental world. But commission members and staffs must also be aware that the press and public will seek to hold them ac- countable, and will not hesitate to critic- ize when they appear to fall short. This is as i t shou ld be. Mem bers of j udicia l con- duct boards, we may presume, are no more likely to be angels than judges. Having created judicial conduct groups to control judges, we must now face the question of how to control judicial con- duct groups. As Hamilton himself recognized, none of the mechanisms built into our frame- work of government to protect against arbitrary or unjust rule is foolproof. "A dependence on the people is, no doubt, the primary control on the government," he believed, and instruments such as a federal system, or separation of powers, or impeachment, were only what he called "auxiliary precautions," like judi- cial conduct organizations. A tradition of openness Another of the most effective auxiliary precautions against tyranny is one of the most distinctively American. It is an instrument that by itself exerts no direct coercive force, but has proven to be tre- mendously powerful throughout our his- tory. I refer to our tradition of openness, of holding certain critical public pro- ceedings in the sunshine, open to public scrutiny. This "precaution," I believe, may be of special value to judicial con- duct organizations as they seek to estab- lish their legitimacy with the public. In fact, openness of the judicial con- duct proceedings may be mandated by our Constitution-at least at some stage. The First Amendment states that the federal government shall "make no law abridging freedom of speech, or of the press." This provision also applies to the states, through the 14th Amendment. Is is now clearly established that the First Amendment requires that certain governmental proceedings, such as a crim- inal trial or a pretrial hearing, be kept open to the press and public. In a series of recent opinions, the Supreme Court has determined that proceedings that histori- cally have been open may not be closed to the public, if granting access plays a "sig- nificant positive role in the functioning of the particular process in question." The criminal trial, for instance, has long been conducted in the open. In Justice Brennan's words, this "tradition of acces- sibili ty implies the favorable j udgmen t of experience." Equally apparent are the many benefits that flow from holding trials in the open: heightening public respect for the judicial process; allowing an outlet for public indignation; educat- ing the public; and enabling the public to serve as a check on this vital governmen- tal process. Thus the Constitution was held to require open trials in the usual criminal proceeding. Similar considerations, I believe, apply to judicial inquiry boards. Public access to judicial discipinary proceedings, I suggest, would advance the First Amend- ment's "core purpose of assuring free- dom of communication on matters relat- ing to the functioning of government," as former Chief Justice Burger put it. A right of access This issue recently arose in the court on which I serve. The question was whether the press and public had a right of access to Pennsylvania's Judicial Inquiry and Review Board. The press sought to in- spect the transcript of a hearing into alleged misconduct by a state appellate judge: The initial complaint had been cleared as non-frivolous, and after a full investigation, the Board filed formal charges and held an adversary hearing on the charges. After the hearing, the Board, in a 5 to 2 vote, declined to recom- mend sanctions to the Pennsylvania Su- preme Court. In a 7 to 4 split, our court ruled that the public had no right of access to the transcript of the proceedings. The major- ity of our court concluded that the ac- cess-to-criminal-trial cases did not con- trol in this instance, because judicial disciplinary proceedings lacked a tradi- tion of openness. The dissent contended 174 Judicature Volume 70, Number 3 October-November, 1986 that the relevant historical inquiry re- quired consideration not only of the prior practices of Pennsylvania's board, (up until this particular case the pro- ceedings had always been public) but also of the history of impeachment, the functional analogue of today's judicial disciplinary panels. Significantly, while it rejected the dissent's historical argu- ment, that the Constitution required openness, the majority did not dispute the proposition that society would derive significant benefits from public access to proceedings involving non-frivolous complaints regarding state judges. Which view ultimately will prevail as a matter of constitutional law is not clear. No other federal court of appeals has considered the issue, but several law reviews have published commentary on access to judicial disciplinary proceed- ings. It may be that the Supreme Court will be called upon to decide the issue. However the federal constitutional in- quiry is resolved, the policy question re- mains. The U.S. Constitution sets min- imum standards, but it does not speak to the wisdom of providing for access in state constitutions or statutes. I believe that the arguments advanced in support of the conclusion that the Constitution requires some degree of access to judicial disciplinary proceedings strongly sup- port allowing access as a matter of pol- icy. Public access will be an essential component in meeting the challenge posed by the current concern with judi- cial misconduct. Legitimacy, in my view, rests in large measure on public understanding. De- nial of access to the disposition of formal charges against judges may well create an impression that such decisions are "based on secret bias and partiality," as former Chief Justice Burger said in the context of the criminal trial. Closure may "breed suspicion of prejudice and arbitrariness, which in turn spawns dis- respect for law." Access also promotes what Professor Vincent Blasi of Columbia University has called "The checking value of the First Amendment." An informed public is far better equipped to serve as a check on both our judiciary and our judicial watchdogs, the members of conduct or- ganizations. For members of judicial conduct groups, the knowledge that the press and public may review their ac- TITX 0022311
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tions Will reduce or eliminate bias or partiality. And, a public educated by exposure to judicial disciplinary pro- ceedings should be able to evaluate judges more knowledgeably, an espe- cially strong consideration where judges are elected. Let my position beclearly understood. I do not advocate that all proceedings of judicial conduct organizations be laid open to public scrutiny. And I agree that there is a strong interest in protecting against unfair injury to a judge's reputa- tion. Boards should be able to screen out frivolous complaints without divulging names and charges. Moreover, investiga- tions prior to formal charges should be conducted secretly. But once a complaint has been deemed sufficiently meritor- ious to justify an adversary hearing, then in all but the most unusual situation, a transcript of the hearing should be avail- able for public inspection, at least after the board has decided the outcome. To the extent that there is any danger of unfair injury to a judge's reputation, disclosure of the full transcript of pro- ceedings, including the basis of the deci- sion to sustain or dismiss the charges, should protect the individual's rights. I Conclusion It seems to me that judges must be wary of their own instincts when they discuss how to monitor judicial conduct. At both state and federal levels, we are steeped in the mystique of the judiciary, with its special need for independence and immunity from political influence. ~ By using the term mystique, I do not mean to deprecate the distinctive role of the judiciary. Quite the contrary: judi- cial independence is deserving of the most vigorous, even fervent, protection. And, when secrecy is necessary to a judi- cial proceeding, as it is with a decisional conference of a collegial court, it too must be defended. But the aura that accompanies the judiciary, because of its special needs, should not lead us to entrust judges with prerogatives beyond those necessary for judicial independence. Judges have pre- rogatives not because we are special citi- zens, but because judicial independence helps secure the liberty of all the people. It is sometimes argued that disclosure of judicial conduct proceedings would undermine public confidence in the judi- ciarv, and thus erode the legititnacy of the courts. This argument has an inter- esting unstated premise: The less people comprehend, the more trusting they will become. It may be that just the opposite is true. All of us know, just as Hamilton did, that our public officials are not angels, and that even judges sometimes breach their duties. In today's climate, citizens need assurance not that judges are unlike other mortals, but that the organizations created to protect against j udges who occasional ly do go astray are functioning with vigilance and impar- tiality. Openness has long been recognized as a crucial protection against arbitrary government. Justice Frankfurter wrote that "A free press is not to be preferred to an independent judiciary, nor an inde- pendent judiciary to a free press. Both are indispensable to a free society." Free- ing the press and public to scrutinize our new scrutinizers of the judiciary-to guard, if you will, the guards them- selves-represents a vital means of assur- ing the continued vitality of an inde- pendent judiciary and the free society it works to preserve. 0 ARLIN M. ADAMS is a judge on the U.S. Court of Appeals for the Third Circuit. This article is adapted from an address delivered at the opening of the Tenth National Conference for Judicial Conduct Organizations on September 17, 1986. State Justice Letters (continued from page 141) Editor's note: We certainly are pleased to know that Judicature is being read, and appreciate Mr. Grimit's kind comments about the journal. The editors, of course, have to take responsibility for the possi- bly misleading quote on page 110. We call such quotes "teasers"; the purpose is to attract readers into the article with a provocative statement. Authors' note: We did not intend to evaluate the quality of education judges receive. We state in the article that it is difficult to do so and that a superior education usually is construed to mean attendance at an Ivy League school. This is a conventional distinction made in much research about courts and it is con- sistent with studies of the law profession which find that lawyers frequently have different career opportunities depend- ing partly on the kind of law school they attend. This may involve prestige dis- tinctions, but assumptions also some- times are made that the Ivy League schools provide a superior, more nation- ally oriented legal education. We recog- nize the subjective content of these kinds of evaluations and we do not necessarily endorse them. We also do not imply that judges who have attended other kinds of schools have received inferior or inade- quate educations. Institute Executive Director The State Justice Institute is seeking an Executive Director. The Institute was established by the State Justice Institute Act of 1984 to further the development and adoption of improved judicial ad- ministration in the state courts through a program of financial assistance. The Director is responsible for the executive and administrative operations of the Institute and other duties as delegated by the Institute's Board of Directors. Applicants must have a law degree or have completed a graduate program in public or business administration or the social sciences. They must have a broad background in legal and judicial con- cerns, possess strong managerial and administrative skills, demonstrate verbal and writing ability, and be willing to live and work in the Washington, D.C. area. It is desirable though not mandatory that applicants have experience in deal- ing with legislators and executive level officials, demonstrate a prior talent and interest in the improvement of the ad- ministration of justice, and have famil- iarity with grant programs. Salary is in the $65,000-$70,000 range depending on experience and ability. Applicants should send a letter explaining their interest in the position, a current resume, and a list of references to: Mr. Larry Polansky 500 Indiana Avenue, N. W. Washington, D.C. 20001 (202) 879-1700 All applications must be received no later than December 12, 1986. TITX 0022312 175
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:1'_. _. , a 0 0 0 [ G ld Thousands of Aitcms have overed that our life insuranoe and long twm disabffity insura~oe pl"ood a lot less than adw goup plaffi for Attomeys. n rwr e y. N/GLIFE Underwritten by: Up To $250,000 Up To a$5,000 itten b• Monthly Benefit U d Group Term Group Long Term Life Insurance Disability Insurance INSIRANCECOMPANY jHE HARTFORD w~ A Member Company of „' ` I American I nterriational Group The Inwrame Peo* of ITT For additional information call toll-free today: 1-800-323-4487 (In Illinois - 1-800-942-6743) Administration office is open 9 am to 5 pm Central Standard time. Attorneys Group Inwoce Trust ` 4 South State Sheet, 3outh HoIWd€ 81inoi6 60473 TITX 0022313 176 Judicature Volume 70, Number 3 October-November, 1986
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r 7)1' 0cus~~~~- , Motion on the merits: an effective response to appellate congestion and delay By Dale M. Green and Michael F. Keyes For the first time in more than a decade, Division III of the Washington State Court of Appeals is current-congestion and delay are no longer problems. t Be- cause of a "Motion on the Merits" proce- dure, first utilized on an experimental basis in Division III and now being implemented statewide, it is now possi- ble for an appeal to be filed and decided within a year. The procedure evolved when the judges recognized that judicial panels were spending considerable time processing appeals where issues (1) were clearly con- trolled by settled state law, (2) were fac- tual and the evidence was sufficient to support the trial court's decision, or (3) involved the exercise of a trial judge's discretion that was clearly not abused. In virtually all of these appeals the trial court was affirmed. The judges concluded that if a procedure could be developed to divert these cases from the judges for initial decision, not only would disposi- tions be increased, but appeals raising truly meritorious issues could be heard and decided by the judges without exces- sive delay. After several years of experi- mentation in Division III, the Washing- ton Supreme Court adopted the motion on the merits procedure for use state- wide.z It is proving to be a significant tool in controlling congestion and delay. The procedure The procedure may be initiated in two ways. After the record on appeal has been completed and the appellant's brief is filed, a respondent may file a motion to affirm the trial court's decision on the merits. This motion is then set for argu- ment before a commissioner.' The argu- ment is recorded on tape. If, after argu- ment, the commissioner decides the decision of the trial court should be re- versed, he files an order returning the appeal to the regular docket for decision by a panel of judges. On the other hand, if the commissioner decides the trial court's decision should be affirmed, he files a written ruling stating the reasons for the decision. 168 Judicsture Volume 70, Number 3 The second way of initiating the pro- cedure is on the court's own motion after a screening process. After the record and briefs are filed, judges screen the cases for purposes of certification to the supreme court and to discover cases suitable for the motion on the merits procedure. When such a suitable case is found, the chief judge enters an order directing the appellant to appear before a named com- 1. As of December 1, 1985, there were only 8 ready cases in Division III that might not be set for hear- ing during the 1986 winter term, i.e., January, Feb- ruary and March. This means that at a maximum, the delay between when a case is ready, i.e., with all briefs on file, and when it will be heard is 4 months. This represents a 10- to 12-month reduction of delay in Division III in less than 2S4 years. 2. Rule of Appellate Procedure 18.14 provides: "(a) Generally. The appellate court may, on its own motion or on motion of a party, affirm a deci- sion or any part thereof on the merits in accordance with the procedures defined in this rule. A motion by a party pursuant to this rule should be denomi- nated a 'motion on the merits.' The general motion procedures defined in Title 17 apply to a motion on the merits only to the extent provided in this rule. "(b) Time. A party may submit a motion on the merits any time after the appellant's brief has been filed. The appellate court on its own motion may, at any time, set a case on the motion calendar for disposition and enter orders the court deems appro- priate to facilitate the hearing and disposition of the case. The clerk will notify the parties of the setting and of any orders entered by the court. "(c) Content, Filing, and Service; Response. A motion on the merits should be a separate docu- ment and should not be included within a party's brief on the merits. The motion should comply with Rule 17.3(a), except that material contained in a brief may be incorporated by reference and need not be repeated in the motion. The motion should be filed and served as provided in Rule 17.4. A response may be filed and served as provided in Rule 17.4(e) and may incorporate material in a brief by reference. "(d) Who Decides Motion. A motion on the mer- its shall be determined initially by a judge or com- missioner of the appellate court. "(e) Considerations Governing Decision on Mo- tion. A motion on the merits will be granted in whole or in part if the appeal or any part thereof is determined to be clearly without merit. In making these determinations, the judge or commissioner will consider all relevant factors including whether the issues on review (1) are clearly controlled by settled law, (2) are factual and supported by the evidence, or (3) are matters of judicial discretion and the decision was clearly within the discretion of the trial court. "(f) Oral Argument. A motion on the merits may be denied without oral argument if the case obvi- ously requires full appellate review. In all other instances Rule 17.5 applies to a motion on the merits, except that oral argument will ordinarily be granted (or a motion on the merits that is to be decided initially Yy the judge or judges. If the appellate court initiates the motion on the merits, the parties will be given an opportunity to submit briefs on the twotion before the date set for oral argument on the motion. October-November, 1986 missioner at a certain time and place to show cause why the trial court should not be affirmed. The case is then handled as described above. The commissioner's written ruling is subject to review by a panel of judges if, within 10 days, a party files a motion to modify the decision.' If a motion to mod- ify is not filed, the decision becomes final. If, however, a motion is filed, it is "(g) Form of Decision Denying Motion. Rule 17.6 is applicable to a decision denying a motion on the meri ts. "(h) Form of Decision Granting Motion. A rul- ing or decision granting a motion on the meri ts will be concise and will include a description of the facts sufficient to place the issues in context, a statement of the issues, and a resolution of the issues with supportive reasons. "(i ) Review of Ruling. A ruling or decision deny- ing a motion on the merits or referring the motion to the judges for decision pursuant to Rule 17.2(b) is not subject to review by the judges. A ruling or decision granting a motion on the merits by a single judge or commissioner is subject to review as pro- vided in Rule 17.7. "(j) Nondisqualification of Judge. Participation in a ruling or decision on a motion on the merits does not thereby disqualify a judge from further participation in the case. "(k) Procedure Optional With Court. The Su- preme Court or any division of the Court of Appeals may, by general order, decide not to use the procedure defined by this Rule." 3. Court of Appeals Administrative Rule 16 pro- vides in part: "The court of appeals shall have such personnel as are authorized by supreme court rule. The per- sonnel will be appointed by and serve at the plea- sure of the division of the court to which they report. "(c) Gommissioner. To promote the effective administration of justice, the judges of each div- ision of the Court of Appeals will appoint one or more commissioners of the court. The salary of the commissioners will be fixed by the court. "(1) Deciding Motions. The commissioners will hear and decide those motions authorized by the Rules of Appellate Procedure and any additional motions that may be assigned to the commissioners by the court. "(8) Qualifications. The commissioners must be graduates of an accredited law school and members in good standing of the Washington State Bar Asso- ciation and, prior to appointment, have at least 5 years of experience in the practice of law or in a judicially related field." 4. Rule of Appellate Procedure 17.7 provides: "An aggrieved person may object to a ruling of a commissioner ... only by a motion to modify the ruling directed to the judges of the court served by the commissioner...The motion to modify the rul- ing must be served on all persons entitled to notice of the original motion and filed in the appellaee court not later than 10 days after the ruling is filed. A motion to the justices in the Supreme Court will be decided by a panel of five justices unless the court directs a hearing by the court en banc." TITX 0022305
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NO POSTAGE NECESSARY IF MAILED IN THE UNITED STATES BUSINESS REPLY CARD FIRST CLASS PERMIT No 48475 CHICAGO ILLINOIS POSTAGE WILL BE PAID BY AMERICAN JUDICATURE SOCIETY 25 East Washington, Suite 1600 Chicago, Illinois 60602 TITX 0022334
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Sumner T. Bernstein Raymond Berry William W. Berry Richard M. Bilby , John M. Bixler Hugo L. Black, Jr. Robert L. Black, Jr. W. F Blanks John H. Blish George R. Blue Janet R. Blue Jerome E. Bogutz Russell K. Bolton John J. Borer, Jr. Hugh H. Bownes Joel M. Boyden A. O. Bracey, III Charles W. Bradley, Jr. Maurice W. Bralley, Jr. George E. Brand, Jr. Paul W. Brandel L. Travis Brannon, Jr. William J. Brennan, III Jermiah J. Bresnahan, Jr. James T Bridges Elvin J. Brown James W. R. Brown Robert A. Brown W. Robert Brown Richard P. Brown, Jr. H. C. Buckingham, Jr. Martin J. Burke Charles E Burns Jacob Burns John D. Butzner, Jr. Dan B. Buzzard L. Paul Byrne George E. Campbell Robert M. Campbell Kent Caperton John L. Carey James D. Carmichael, Jr. Arthur A. Carrellas Philip V. Carter Roch Carter Elbert N. Carvel Donald L. Castle Ralph L. Cavalli Bernard Cedarbaum Samuel T Cespedes J. LeVonne Chambers B. M. Miller Childers Corinne Childs Joseph E. Cirigliano Ralph E. Clark, Jr. Atreus M. Clay Erwin L. Clemens A. G. Cleveland, Jr. F. Douglas Cochrane Sheldon S. Cohen Wallace M. Cohen Avern L. Cohn Gloria G. Cole James A. Cole, Jr. Daniel F. Collins Frederick Colombo A. B. Conant, Jr. John L. Coney James P. Connelly Laurence D. Connor Ernest S. Cookerly J. Gordon Cooney Gordon R. Cooper Howard F. Corcoran Jack Corinblit Robert Corontzos John R. Couch H. A. Courtney Melvin E. Cowart M. Jeanne Coyne W. Carroll Coyne J. Roth Crabbe Bruce N. Cracraft John M. Cranston Richard D. Cudahy Robert P. Cummins Charles G. Cunningham G. Alan Cunningham Louis D. Curet Larry J. Dagenhart Robert S. Daggett Thomas M. Davies De Forest P. Davis Ilus W. Davis Oscar H. Davis William R. Davis James H. Davis, III S. Joseph Davis, Jr. John E. Dawson AJS' Center for Judicial Conduct Organizations held its Tenth National Confer- ence in Chicago in September, bringing together nearly 200 JCO Thomas J. Du Bos Warren W. Eginton Alex Elson Arthur J. England, Jr. Ervin M. Entrekin Burdette W. Erickson James R. Erickson Haliburton Fales, [I William F. Fant Robert T Farr J. Kay Felt Edward H. Fenlon Albert E. Fey Joseph J. Fine S. Richard Fine Sewall S. Fine Robert V. Fink Leon Finley Bennett H. Fishler, Jr. Morgan L. Fitch, Jr. Macklin Fleming members, judges, professors, reporters and others interested in studying judicial conduct and discipline, and in improving their own work in the field. Public access to and confidentiality of the work of JCOs, and the related problem of media relations, were major themes of the conference, keynoted by Judge Arlin M. Adams of the United States Court of Appeals for the Third Circuit. (Judge Adams' remarks appear on page 142 of this issue. ) Participants also heard remarks by Dan Webb, former United States Attorney for the Northern District of Illinois and chief prosecutor in the "Greylord" investigation, in which six judges were convicted of crimes committed in the course of their duties. Webb spoke about the merits and demerits of undercover investi- gations of judges. Dennis C. De Berry Merlin A. De Conti Harold R. De Moss, Jr. Warren A. Deahl John K. Dear Dickinson R. Debevoise Max Frank Deutz Anna M. Di Genio Robert J. Dixson John F. Dodd William H. Dodd Norbert L. Doligalski Gretchen G. Donaldson Frank W. Donovan James R. Dooley John B. Doolin Patricia Dore Wm E. Dougherty, Jr. William M. Drennen Noel C. Fleming Philip A. Fleming Betty B. Fletcher Leon S. Forman S. Joseph Fortunato Etha B. Fox Henry H. Fox C. Carleton Frederici Paul A. Freund E. M. Friend, Jr. Gus A. Fritchie, Jr. Jerome L. Froimson Robert V. Fullerton Royal Furgeson, Jr. Samuel C. Gainsburgh Fournier J. Gale, III Ronald H. Galowich Robert T Gannett M. Leon Garmon, Jr. John J. Gartland, Jr. James E. Garvey William L. Garwood Andrew R. Gelman C. William Gilchrist John S. Gilman Robert M. Ginn D. Wayne Gittinger John W. Glendening, Jr. Fred M. Gloth, Jr. John E. Golden John Wood Goldsack . Louis L. Goldstein Emanuel H. Gottesman Christian V. Graf Hardy Moore Graham Fred D. Green Joyce Hens Green Patrick A. Green John E. Greenbacker Joe R. Greenhill Ralph H. Greil Frederick P. Greiner Jack Gross Richard E. Guggenhime Clarence A. Guittard Frank A. Gulotta, Jr. Hanley M. Gurwin Charles T Hagan, Jr. Robert H. Hall John R. Halleran Paul M. Hamburger Roy A. Hammer David R. Harbarger John G. Harkins, Jr. Morris Harrell Joel B. Harris G. Hughel Harrison William J. Hacte James M. Hartman J. Madden Hatcher, Jr. Roger E. Haughey Donald M. Hawkins John R. Haworth Richard Haydock C. J. Head Hayden W. Head Douglass D. Hearne Robert A. Hefner Rex S. Heinke Robert E. Heizer, Jr. Bernard Hellring Bill Helm H. Parks Helms Robert Henigson William O. E Henry L. Luton Henson Robert B. Hiden, Jr. Earl M. Hill Lee Hills Haywood H. Hillyer, Jr. Herbert H. Hirschhorn Robert B. Hocutt Arthur C. Hodgson Jon Hoffheimer Gene M. Hoffman Claude H. Hogan Morton J. Holbrook Dallas Holmes John Holmstrom, Jr. Amos A. Holter Charles I. Hopkins, Jr. William W. Hoppin Douglas G. Houser Harris S. Howard J. Woodford Howard Edwin E. Huddleson, Jr. Harry W. Hultgren, Jr. TITX 0022320
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George H. Hunker. Jr. Ernest C. Hurst Frank W. Hustace, Jr. Joseph C. Hutcheson, III James R. Hutter Barton L. Ingraham Richard G. Ison Elmer J. Jackson Edwin J. Jacob Mark M. Jaffe Eric M. Javits James R. Jenkins John A. Jenkins W. Edgar Jessup, Jr. Robert Mclean Jeter Walter F Johnsey Daniel E. Johnson Hubert D. Johnson Joseph B. Johnson John C. Johnston, Jr. Albert P. Jones E. Stewart Jones Hugh R. Jones Lillian W. Jones Nathaniel R. Jones Warren L. Jones Robert L. Jones, IlI E. Stewart Jones, Jr. Bernice Jonson Conrad J. Kalbfleisch David S. Kane Deborah Kanter Ralph L. Kaskell, Jr. Bruce W. Kauffman Edward W. Keane Thomas E. Keane John J. Kelley John S. Kellogg Martin Kellogg, Jr. Joseph W. Kennedy Charles G. Kepler Charles T. Kessler James J. Kilpatrick Victor R. King Earl W. Kintner Harry H. Kirby Francis R. Kirkham F. Philip Kirwan Rodney O. Kittelsen Franklin W. Klein William E. Knepper Cliff Knowles Charles W. Knowlton Sara H. Kramer Alex Kraut Louis P. Labbe Jacob S. Landry A. H. Lane John S. Langford, Jr. Duane Lansverk George V. Lanza Sheldon S. Larson Edward L. Lascher Moses Lasky James L. Latchum Richard A. Lavine William B. Lawless Thomas T. Lawson Donald P. Lay Raymond La Placa William J. Le boux Richard J. Learson James B. Lee Louis G. Lemle Hiram H. Lesar William R. Levasseur Clyde A. Lewis Ogden N. Lewis Woodrow Lewis Stephen F. Lichtenstein Lawrence B. Lindemer Susan B. Lindenauer Andrew R. Linscott Robert J. Lipshutz Byrne Litschgi Allan N. Littman Pierce Lively Lloyd Lochridge R. S. Lombard Beverly Glenn Long Caleb Loring, Jr. John B. Lounibos Laurence D. Lovett Alan V. Lowenstein John M. Luttrell James P. Lynch, Jr. Arch MacDonald Hugh L. MacNeil Phillip S. Makin Joseph J. Malizia Calvin N. Manis John B. Menn Gilbert S. Merritt Herbert L. Meschke James H. Milam A. Montague Miller Percy K. Mirikitani Alan S. Mirman David M. Miro Guy Mitchell, III Donald W. Molloy Malcolm W. Monroe Ralph E. Moody Charles R. Moon John B. Morgan John H. Morgan Robert D. Morgan Earl F. Morris Joseph W. Morris Chester A. Morrison John H. Morrison Walton S. Morrison Jean A. Mortland David H, Morton Paul A. Mueller, Jr. Institutes for nominating commissioners and college faculty AJS continues to help judicial nominating commissioners pre- pare for their tasks with a one-day program of slide presentations, videotapes of actual interviews by nominating commissioners, and discussion groups. This past year, institutes were held in Wyoming, Hawaii, Nebraska and Utah, with a special program tailored to the selection of federal bankruptcy judges presented to a meeting of the federal circuit executives. The Society's Summer Institute for Teachers of American Government held its third annual session this year in Chicago, bringing together 15 college teachers for an intensive three-week course from scholars who specalize in the justice system. The program is designed to help professors increase their knowledge of the Third Branch so their students will receive a more complete understanding of the American governmental system. Sam H. Mann, Jr. George S. Marinos Albert B. Maris T O. Marshall Jack R. Martin Watt Nicholas Martin John W. Martin, Jr. Stanley H. Matheny Leroy H. Mattson Katherine A. Mazzaferri James A. McCafferty Russell McCaughan A. G. McClintock Edward J. McCormack, Jr. Mary Ann McCoy E. Windell McCrackin Everett S. McCrum Robert E. McFarland Rex A. McKittrick David M. McLean Harley J. McNeal Leo Melamed Cloyd R. Mellott Leon Meltzer M. Wayne Munday W. D. Murray Norman H. Nachman Roland Nachman, Jr. Terry Nafisi Paul A. Nalty Florence B. Nash Robert D. Nelon Edwin N. Ness Dawn Clark Netsch Frederick C. Newman A. John Nicholson Edward J. Niland Joseph M. Nolan R. C. Norris Gary Norton David W. O' Brien Lawrence S. Okinaga James R. Olson Lafel E. Oman Andrea Sheridan Ordin Jeanne Owen Jack G. Paden Hubert B. Pair Anthony R. Palermo Robert L. Palmer Philip I. Palmer, Jr. Addison M. Parker Francis I. Parker Robert L. Parks Norman K. Parsells R. W. Payne, Jr. John D. Peacock Rose N. Perotti B. T Perrine Edwin H. Perry Harold H. Pfahl Donald E. Phillipson Gabriel F. Piemonte Jerome M. Polaha Franklin A. Polk Milton Pollack Julius R. Pollatschek Humbert D. Ponce De Leon Robert C. Poole William Poole H Wallace Pope, Jr. David S. Porter Ray L. Potter Jerome Powell Kenneth E. Prather L. Norton Preddy James D. Pruett Thomas M. Reavley L. Drew Redden H. E. Reily Don H. Reuben W. Glasgow Reynolds William T. Richert Richard E. Richman Louis J. Richman, Jr. John W. Riely Dorothy Comstock Riley Robert D. Risch Vernon Earl Robbins Randall L. Roberts Michael J. Rooney Sylvan L. Rosen Edward Rothschild Gilford G. Rowland Florence R. Rubin Isaac Rubin Rose Luttan Rubin Gerald E. Rudman Harold L. Russell Robert G. Russell - Albert F. Sabo Lowell E. Sachnoff Sidney S. Sachs J. Quint Salmon M. Louis Salmon Philip Salny Leo S. Samuels William Fred Santiago William A. Sawtell, Jr. Harold Schafer Milton J. Schubin C. Frederick Schutte John L. Schwabe Tom Sealy Irving R. Segal W. Edward Sell Harton S. Semple Anita Rae Shapiro Robert W. Sharp Edward J. Shea Perry J. Shertz Shirley A. Shideler William W. Shinn Robert L. Shipper James M. Sibley TITX 0022321
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Batson v. Kentucky and Turner v. Murray. A more important shortcoming is that both of these books-and most of the psychological research on juries-focus almost exclusively on criminal juries. While many of the psychological prin- ciples underlying criminal jury judg- ments can be generalized to j uries in civil Noteworthy ln an effort to keep readers abreast of cur- rent thinking on court topics, Judicature publishes, from time to time, an anno- tated listing of recent books and articles. Kalman, Legal Realism at Yale, 1927- 19gp, (Chapel Hill, NC, University of North Carolina Press, 1986, $35). Legal realism, Yale's answer to the Harvard case method, could have radically changed legal education, Kalman, an associate professor of history at the Uni- versity of California, Santa Barbara, con- tends, but it failed to do so, partially because of the conservatism of the Yale adtninistration. "Thinking like a law- yer" thus still rules law school curricula, and representation of the wealthy still rules the legal system, in her view. Sanctions: Rule 11 and Other Powers, (Chicago, American Bar Association Sec- pon of Litigation, 1986, $24). Devoting a chapter to each circuit, Sanctions exam- inesreported and unreported circuit and district court decisions under Rules 11 and 37 of the Federal Rules of Civil Procedure. Includes advice on avoiding sanctions. Wasserman and O'Brien, eds., Law and Legal Information Directory, Fourth Edi- don, (Detroit, Gale Research, Co., 1986, f280). A source book, with new chapters on lawyer referral services, legal aid offi- ces, public defender offices, and legisla- tive manuals and registers. The publisher claims the new edition has 45 per cent more entries than the 1984 version. Craver, Effective Legal Negotiation mdSettlement, (Charlottesville, VA, The Richie Co., 1986, $35). Another entry in the how•to-negotiate sweepstakes. Pro- (aaor Charles B. Craver takes the tradi- aottal tack that there is a "winner" and a 10er" in negotiated settlements. Tac- aa to make you a winner are offered. Kressel, How Couples and Profes- ep0sh Negotiate Divorce Settlements, Ole* York, Basic Books, 1985, $23.95). trials, there are reasons to expect some important differences. Civil juries oper- ate under a different standard of proof, often encounter evidence that is highly technical, and must occasionally resolve disputes involving large organizations rather than individuals. And we still know very little about the dynamics Kressel, a psychologist, describes and eval- uates the roles played by therapists, law- yers and mediators in bringing a marriage to an end. He finds that go-for-the-jugu- lar "advocates" turn out to be just as suc- cessful as kindly "counselors" in bring- ing about a peaceful end to hostilities. University of Chicago Law Review, (Symposium on Litigation Management, Spring 1986, $7). This fat volume fea- tures articles by such heavyweights in the field of litigation management as Wayne D. Brazil, Judith Resnik, Jethro K. Lieberman and James F. Henry, and United States Court of Appeals Judge Richard A. Posner, to name a few. Sub- jects range from the judges' role in the Agent Orange litigation by Peter H. Schuck, author of a forthcoming book on that mass of tortious confusion, to the effect of managerial judging on proce- dure by E. Donald Elliott. A meaty issue. Clark, Judges and the Cities: Inter- preting Local Autonomy, (Chicago, Uni- versity of Chicago Press, 1985, $25). After examining four complex court disputes in considerable depth, this dense tome concludes that neither structural nor more conventional liberal theories of social discourse will quite do: social relations are so continually changing that they escape the grasp of any theory. The publisher says this book will inter- est "geographers, political scientists,, economists, sociologists and legal scho- lars," but none will find it an easy read. Green, Verdict According to Con- science: Perspectives on the English Criminal Trial Jury, 1200-1800, (Chi- cago, University of Chicago Press, 1985, $34). A fascinating historical study of jury nullification, which was the subject of a recent Public Broadcasting System documentary, this book has ambitions to provide a comprehensive look at the jury in the period studied. Being "compre- hensive" in the era of the computer data involved in the awarding of compensa- tory and punitive damages. I suspect that in the coming years the civil jury will engage the attention of both the legal and the scientific communities. 0 ROBERT J. MacCOUN is a postdoctoral re- search fellow in the Department of Psychol- ogy, Northwestern University. base is no mean trick, and to an extent Thomas Green, a history professor at the University of Michigan, succumbs to the temptation to get bogged down in a swamp of data. Nonetheless, the data is illuminating to those with an interest in jury history, and the presentation is rarely pedantic. Beer, Peacemaking in Your Neighbor- hood: Reflections on an Experiment in Community Mediation, (Philadelphia, New Society Publishers, 1986, $14.95). An outgrowth of a Philadelphia Society of Friends' project, this "reflection," de- liberately long on stories but short on analysis, concludes, somewhat ruefully, that although community mediation "can address certain kinds of inj ustice ... our society has already twisted that po- tential, bending the premise of volun- tary participation, using mediation to shunt off unwanted people with un- wanted troubles." "Must" reading for advocates of compulsory, professional- ized Alternative Dispute Resolution. Call for Papers Judicature is soliciting manuscripts for a symposium issue devoted to "The judicial power and the Constitution." Topics should address the relationship between the Constitution and the judi- cial system, with particular reference to Article III and Amendments IV VIII. More general topics such as judicial independence and judicial federalism would also be appropriate. Planned publication date is August-September, 1987. Manuscripts, of 20-25 pages, should be submitted by March 15, 1987 to David Richert, Editor, Judicature, 25 E. Washington, Suite 1600, Chicago, Illinois 60602. Authors will be notified of the review- ers' decision by May 1. TITX 0022310 173
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James R. Olson Andrea Sheridan Ordin Revius O. Ortique, Jr. Ben F. Overton Jeanne Owen Jack G.Paden Hubert B. Pair Anthony R. Palermo Francis I. Parker Robert L. Parks R. W. Payne, Jr. John D. Peacock Rose N. Perotti B. T Perrine Edwin H. Perry Harold H. Pfahl Gabriel F. Piemonte John C. Pinkerton Cass Piotrowski Franklin A. Polk Milton Pollack Julius R. Pollatschek Humbert D. Ponce DeLeon William Poole Maury B. Poscover Ray L. Potter Jerome Powell Kenneth E. Prather L. Norton Preddy William T. Prince John G. Rauch, Jr. Robert D. Raven Henry T. Reath Thomas M. Reavley L. Drew Redden Otto L. Reinisch, III Don H.Reuben W. Glasgow Reynolds W. Ward Reynoldson William T Richert Richard E. Richman Dorothy Comstock Riley Vernon Earl Robbins Sylvan L. Rosen Maurice Rosenberg Victor G. Rosenblum Gerald E. Rudman Robert G. Russell Lowell E. Sachnoff M. Louis Salmon Leo S. Samuels William A. Sawtell, Jr. Gordon D. Schaber Harold Schafer Harold R. Schmidt C. Frederick Schutte John L. Schwabe Joel E. Schweitzer Tom Sealy W. Edward Sell Harton S. Semple Robert A. Shapiro Robert W. Sharp Edward J. Shea Perry J. Shertz Shirley A. Shideler William W. Shinn Robert L. Shipper Thomas J. Shumard James M. Sibley Antonio R. Sifre Bryan Simpson Robert S. Skinner George B. Smith John Kerwin Smith Kirk Smith Marvin H. Smith Augustine T Smythe Cubbedge Snow, Jr. William Arthur Snyder, Jr. A. A. Sommer, Jr. Neal R. Sonnett Jim W. Sowell Frank F. Spata Robert M. Spire Lawrence R. Springer Edward K. Stackler K. Paul Stahl, III Katherine M. Staley William L. Standish Robert A. Stein Edmund A. Stephan Nevin Stetler Harold A. Stevens Thomas B. Stewart Fred G. Stickel, III Sidney Stubbs, Jr. "Judges' social associa- tions and activities" was Northwestern Uni- versity law professor Steven Lubet's topic when he addressed the mid-year meeting of the board of directors in Baltimore. Gerard H. VanHoof Lawrence R. VanTil William A. Vanelli Harvey C. Varnum E. D. Vickery Robert Austin Vinyard T Donald Wade W. J. Walker Lawrence E. Walsh Richard P. Warfield Glenn R. Watson Alexander P. Waugh Robert L. Weinberg Charles I. Wellborn J. Ralston Werum John P. Wham Lish Whitson Alan Wicks Donna C. Willard John W. Winston Commenting on his speech were nationally syndicated columnist Roger Simon, New Jersey Advisory Committee on Judicial Con- duct counsel Patrick J. Monahan, Jr., and Florida Supreme Court Justice Ben F. Overton. At the annual meeting in New York, judge William J. Bauer of the U.S. Court of Appeals for the Seventh Circuit conducted a Socratic dialogue on "Judicial independence v judicial elections" among a panel of lawyers, judges, journalists and others. In the afternoon Lynn Hecht Schafran, Director of the National Judicial Education Program to Promote Equality for Women and Men in the Courts, discussed "Gender bias in the courts." Paul D. Sullivan Fred G. Suria, Jr. Stephen H. Suttle Edward M. Swartz Thomas P. Sweeney Clyde A. Szuch VG'illis M. Tate Henry J. N. Taub John J. Tebelius Wayne A. Tenenbaum Charles H. Tenney Bruce R. Thompson Jack W. Thomson Randolph W. Thrower Cleveland Thurber George B. Timmerman, Jr. Paul H. Titus Maynard J. Toll George N. Tompkins, Jr. Michael Traynor Everette Truly William E. Turnage Glenn R. Winters James R. Wolfe C. W. Womble Dick H. Woods Arthur M. Wright Terrell Wynn Robert B. Yegge Michael J. Yelovich Frank B. Zinn Other contributors Lynne Marsha Abraham Ernesto J. Acosta James C. Adams Robert F. Adams Carolyn E. Agger M. Bernard Aidinoff William David Aiken Alfred T. Airth Henry D. Akin J. M. Albritton Patricia H. Alexander Bruce F. Allen Francis H. Allen Frank D. Allen Ina D. Alt Paul B. Altermatt George D. Anderson James H. Anderson Jean R. Anderson Terence J. Anderson W. C. Anderson Harper Andrews Robert N. Andry George C. Anson Charles W. Antes Richard H. Appert Alan W. Applebee W. H. Arnold, III W. N. Arnold S. Samuel Arsht Norman Asher Vernon Asher C. Clyde Atkins William T. Atkins Joseph R. Austin Spurgeon Avakian Ralph E. Axley Howard W. Babcock Harold Baer Michael R. Baer C. C. Bailey Lee E. Bailey Robert Bailey, Jr. James J. Baker Kenneth Balcomb Vincent Curtis Baldwin W. LaVerne Baldwin Fletcher N. Baldwin, Jr. Conrad L. Ball W. Lewis Bambrick Frederick E. Bangs James M. Barker Thomas H. Barland Ben F. Barnes Eva Barnes James E. Barrett James M. Barrett Jane H. Barrett Roger S. Barrett Uhel O. Barrickman Kenneth P. Barrow Louis F. Bartelt, Jr. Clyde Barton Isadore Baskin Leonard D. Baskin James L. Bass Warren F. Bateman Cameron M. Batjer Anthony S. Battaglia William J. Baudler Harry H. Baulch Victor J. Baum F. Robert Bayle Leona Beane William M. Beaney Patrick Beary John C. Beatty, Jr. Leon Becker Bernard M. Beerman Carl W. Behner Iris Y. Bell Albert C. Bellas Leo E. Benade Le Roy Bendheim Mark L. Bennett Robert S. Bennett TjTx 0022324
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Christine M. Durham Bert H. Early John C. Elam Burdette W. Erickson Haliburton Fales, II C. Sims Farr Albert E. Fey Joseph J. Fine Sewall S. Fine Robert V. Fink Leon Finley Robert B. Fiske, Jr. Morgan L. Fitch, Jr. Duane D. Fitzgerald Rosalie FitzPatrick Macklin Fleming Leon S. Forman Henry H. Fox Paul A. Freund Jerome L. Froimson Robert V. Fullerton Royal Furgeson, Jr. Samuel C. Gainsburgh Fournier J. Gale, III Ronald H. Galowich Robert T. Gannett Richard O. Gantz M. Leon Garmon, Jr. John J. Gartland, Jr. James E. Garvey William L. Garwood Georgia Chapter of AJS Raymond I. Geraidson John S. Gilman D. Wayne Gittinger Gordon M. Glier, Sr. John E. Golden John Wood Goldsack Emanuel H. Gottesman Charles P. Gould Hardy Moore Graham John Davis Gray Fred D. Green Joyce Hens Green Patrick A. Green John E. Greenbacker Ralph H. Greil Frederick P. Greiner W. A. Groening, Jr. Jack Gross Clarence A. Guittard Charles T Hagan, Jr. John R. Halleran Paul M. Hamburger John G. Harkins, Jr. William J. Harte James M. Hartman Albert C. Harvey J. Madden Hatcher, Jr. John L. Hauer Roger E. Haughey TJcnald M. Hawkins John R. Haworth Richard Haydock Jean R. Haynes Thomas B. Haynes Clement F. Haynsworth, Jr. C. J. Head Hayden W. Head Douglass D. Hearne Robert A. Hefner Rex S. Heinke Bill Helm Robert Henigson William O. E. Henry L. Luton Henson Robert O. Hetlage Robert B. Hiden, Jr. Edgar D. Hieronymus Earl M. Hill Lee Hills Haywood H. Hillyer, Jr. Jon Hoffheimer Gene M. Hoffman Harold W. Hofman, Jr. William L. Hoisington Morton J. Holbrook Dallas Holmes Charles I. Hopkins, Jr. William W. Hoppin Harris S. Howard Harry W. Hultgren, Jr. George H. Hunker, Jr. Frank W. Hustace, Jr. James R. Hutter R. William Ide, III Barton L. Ingraham Donald L. Jackson Elmer J. Jackson Staff activities Bruce W. Kauffman Julia A. Kaufmann Judith S. Kaye Edward W. Keane Thomas E. Keane John J. Kelley Joseph W. Kennedy Ann Loughridge Kerr William L. Kervick Charles T Kessler Gladys Kessler James J. Kilpatrick Irwin I. Kimmelman Victor R. King Norman V. Kinsey F. Philip Kirwan Rodney O. Kittelsen Franklin W. Klein William E. Knepper Richard F Knight Charles W. Knowlton Theodore I. Koskoff AJS staff members are frequently called upon by other organi- zations in the field of court improvement to share their expertise through speaking engagements, conference panels, and advisory boards. Among last year's activities were addresses by Frances K. Zemans, Assistant Executive Director for Programs, to the South- west Association of Pre-Law Advisors in Dallas, by Staff Asso- ciate Mark Lyon to the Western Judicial Conference sponsored by the National Center for State Courts, and by Jeffrey Shaman, Director of the Center for Judicial Conduct Organizations, to the Mississippi Judicial College in Jackson and to the Council of Chief Judges of Courts of Appeals in New Orleans. Zemans served on a panel evaluating court performance at the Conference on Judicial Administration Research and was also a panelist at the Law and Society Association's annual meeting in Chicago. She was appointed to a committee of the American Political Science Association to select a prize-winning dissertation in the area of public law, and was named to the editorial board of the Justice System Journma.l. Judicature Editor David Richert was named a non-lawyer member of the Illinois State Bar Associa- tion's Civil Practice and Procedure Section Council. Mark M. Jaffe W. J. Jameson Eric M. Javits James R. Jenkins W. Edgar Jessup, Jr. Walter F. Johnsey Daniel E. Johnson Hubert D. Johnson Joseph B. Johnson Norma Holloway Johnson Thomas J. Johnson Albert P. Jones E. Stewart Jones Nathaniel R. Jones Warren L. Jones E. Stewart Jones, Jr. Bernice Jonson Robert E. Juceam Conrad J. Kalbfleisch David S. Kane Ralph L. Kaskell, Jr. R. Arnold Kramer Sara H. Kramer Alex Kraut John A. Krsul, Jr. Louis P. Labbe A. H. Lane George V. Lanza Moses Lasky Noel V. Lateef Richard A. Lavine Harry O. Lawson Thomas T. Lawson James B. Lee John R. Lenahan, Sr. Hiram H. Lesar A. Leo Levin Clyde A. Lewis Dean S. Lewis Ogden N. Lewis Woodrow Lewis Stephen F. Lichtenstein Lawrence B. Lindemer George N. Lindsay Robert J. Lipshutz Byrne Litschgi Allan N. Littman R. S. Lombard Lucile Lomen Beverly Glenn Long Caleb Loring, Jr. John B. Lounibos H. Malcolm Lovett Robert S. Lowe John M. Luttrell James P. Lynch, Jr. Robert MacCrate Phillip S. Makin Joseph J. Malizia Calvin N. Manis Noel E. Manoukian William C. Marlatt, Jr. E. G. Marshall T O. Marshall Jack R. Martin Watt Nicholas Martin John W. Martin, Jr. Stanley H. Matheny Leroy H. Mattson James A. McCafferty Russell McCaughan A. G. McClintock Edward J. McCormack, Jr. Walter T. McGough Robert B. McKay Rex A. McKittrick David M. McLean William F. McNagny Robert E. McNair Harley J. McNeal Hamilton Eugene McRae Daniel J. Meador John B. Menn Gilbert S. Merritt Robert W. Meserve Clifford L. Michel fames H. Milam A. Montague Miller Richard S. Milstein Percy K. Mirikitani Alan S. Mirman David M. Miro Donald W. Molloy Ralph E. Moody Charles R. Moon John B. Morgan Robert D. Morgan Joseph W. Morris Chester A. Morrison John H. Morrison M. Peter Moser Diana E. Murphy Florence K. Murray W. D. Murray Norman H. Nachman Terry Nafisi Paul A. Nalry Dorothy W. Nelson Edwin N. Ness Dawn Clark Netsch John L. Newburn Frederick C. Newman A. John Nicholson Edward J. Niland James H. Norris, Jr. R. C. Norris Gary Norton Douglas O'Brien Arden J. Olson TITX 0022323
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Antonio R. Sifre Lawrence P. Simon Bryan Simpson E. Dudley Smith George B. Smith John Kerwin Smith Marvin H. Smith Mary J. Smith Philip Hawley Smith Stanley D. Smith Cubbedge Snow, Jr. William Arthur Snyder, Jr. Clifford L. Somers A. A. Sommer, Jr. Jim W. Sowell Frank F. Spata Lawrence R. Springer Edward K. Stackler K. Paul Stahl, III Katherine M. Staley Joseph H. Stamler Edmund A. Stephan Harold A. Stevens Thomas B. Stewart Fred G. Stickel, III Wilton L. Strickland Sidney Stubbs, Jr. Paul D. Sullivan Stuart A. Summit Fred G. Suria, Jr. John A. Sutro, Jr. Edward M. Swartz Thomas P. Sweeney Jack Bruce Swerling C. William Sykora Clyde A. Szuch Willis M. Tate Henry J. N. Taub John J. Tebelius Charles H. Tenney Howard J. Thomas Lucia T Thomas Bruce R. Thompson Robert S. Thompson Jack W Thomson Randolph W. Thrower Cleveland Thurber Thomas M. Timlen, Jr. John E. Tobin James Toledano ~3eorge N. Tompkins, Jr. :rrol M. Tostrud )avid C. Tracey tichael Traynor harles H. Troutman 1. A. True, Jr. Everette Truly Nicholas Tsoucalas Meredith B. Turner Gerard H. Van Hoof Lawrence R. Van Til William A. Vanelli Harvey C. Varnum Leon W. Vaseliades V. Lee Vesely E. D. Vickery Robert Austin Vinyard W. J. Walker Lawrence E. Walsh James D. Ward Richard P. Warfield Ronald F. Waterman Glenn R. Watson Robert F. Watson Alexander P. Waugh John M. Webb Robert 1. Weil Robert L. Weinberg J. Ralston Werum John P. Wham William A. Whitlock Lish Whitson Donna C. Willard William W. Willard James M. Wilsman John Windhorst, Jr. John W. Winston Kent Winterholler James R. Wolfe Irving M. Wolff C. W Womble Alan R. Woodard Dick H. Woods Arthur M. Wright Terrell Wynn Robert B. Yegge E. Osborne Ayscue, Jr. Boyd M. Bailey William J. Baird James E. S. Baker Sharon Baldwin Joseph R. Bankoff Burrel Barash Richard A. Barber Robert W. Barker Roy E. Barnes Mark W. Barnett Curtis H. Barnette Samuel E. Bass Victor F. Battaglia Addison M. Beavers Thomas D. Bell James A. Belson Jack C. Benjamin Allen H. Berkman Judicature: AJS' journal Judicature provides visibility to the work of AJS, while also bringing the latest research and scholarship about the administra- tion of justice to its readers. Symposium issues from time to time gather in one issue a range of articles focused on a single subject: the February-March 1986 issue on Alternative Dispute Resolu- tion and the Courts brought together a number of perspectives on this important subject. Other articles arise out of the work of the Center for Judicial Conduct Organizations; such studies have recently focused on the limits of j udges' participation in charitable activities, judicial involvement in victim assistance programs, and fundraising by judges. Judicature articles reach far beyond the journal's immediate readership. The findings of a study of financing of judicial cam- paigns in Cook County, Illinois, published in the June-July 1986 issue, were widely quoted in the popular media, and AJS' Publica- tions Department frequently receives requests from professors for permission to duplicate articles for students of government or political science. Judicature articles are also frequently reprinted in other journals, and a study last year found it to be, along with a few prestigious law reviews, among the journals most cited in published opinions of courts. These contributions to public awareness of issues in the j ustice system help advance the Society's goal of improving the administration of justice. Michael J. Yelovich Barney T. Young Frank B. Zinn Special contribut.ors James J. Alfini Ethan Allen Richard D. Allen Marion Ames Gustave G. Amsterdam Kenneth M. Anderson R. Dennis Anderson J. David Andrews David L. Applegate David J. Armstrong Clinton R. Ashford Harry W. Asquith Charles F. Atkinson Morris Atlas Leonard Bernard, Jr. Sumner T. Bernstein William W. Berry Richard M. Bilby Robert L. Black, Jr. Andrew L. Blair W. F. Blanks John H. Blish Janet R. Blue Brooksley E. Born Richard R. Bostwick Hugh H. Bownes Joel M. Boyden A. O. Bracey, III Charles W. Bradley, Jr. George E. Brand, Jr. William J. Brennan, III Jermiah J. Bresnahan, Jr. James W. R. Brown W. Robert Brown Richard P. Brown, Jr. Charles F. Burns John D. Butzner, Jr. Dan B. Buzzard J. Thomas Caldwell Robert M. Campbell Kent Caperton Charles C. Carella E. N. Carpenter, II Arthur A. Carrellas Philip V. Carter Roch Carter Bernard Cedarbaum Samuel T. Cespedes J. LeVonne Chambers David Chappell R. Harvey Chappell, Jr. B. M. Miller Childers Corinne Childs Joseph E. Cirigliano Ralph E. Clark, Jr. Erwin L. Clemens A. G. Cleveland, Jr. Michael L. Cochran F. Douglas Cochrane Sheldon S. Cohen Wallace M. Cohen Avern L. Cohn Kendall M. Cole James A. Cole, Jr. Daniel F. Collins John C. Combe, Jr. A. B. Conant, Jr. John L. Coney Laurence D. Connor Joy Flowers Conti Ernest S. Cookerly Gordon R. Cooper Howard F. Corcoran Herbert C. Cornuelle John R. Couch H. A. Courtney Melvin E. Cowart M. Jeanne Coyne W Carroll Coyne Bruce N. Cracraft John M. Cranston Charles G. Cunningham Louis D. Curet William J. Currer, Jr. Gilbert A. Currie Paul William Cutler Larry J. Dagenhart Robert S. Daggett Julia D. Darlow Thomas M. Davies Ilus W. Davis Oscar H. Davis S. Joseph Davis, Jr. John J. Dawson Dennis C. DeBerry Evo DeConcini Merlin A. DeConti John K. Dear Dickinson R. Debevoise Robert J. Dixson John F. Dodd William H. Dodd Norbert L. Doligalski Frank W. Donovan John B. Doolin Patricia Dore David S. Dory Wm E. Dougherty, Jr. Thomas J. DuBos Stuart J. Dunnings, Jr. TITX 0022322 II
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Please send me the following publications # Qty: Cost # Qty: Cost # Qty: Cost 8577 8578 328 - 8576 293 _ 8572 - 202 8567 ~ 8537 - 8566 8570 ~ 8553 ____ 294 _ 8588 ~ Digest 8565 8575 (specify year) - - 8128 8580 - Subscriptions 8564 291 Bulletin - 292 ~ _ 8563 ~ Judicature - 8561 8571 -~ - Reporter - 8568 8560 ~ Total Cost ~ a Payment enclosed (we pay postage and handling) O Blll me (Postage and handling will be added) Name Address_ - City State Zip Make check payable to the American Judicature Society TITX 0022333
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Life members Arlin M. Adams William F. Ahlstrom Justin Albright James J. Alfini Chester M. Alter Marion Ames Clinton R. Ashford Roy E. Barnes Victor F. Battaglia 0. Duncan Bauman William H. Bell Leo L. Beranek Andrew L. Blair Karl V. Bledsoe Joseph Bloom Brenda J. Bogan David C. Bogan Richard R. Bostwick Cecil E. Burney George Sam Caporal E. N. Carpenter, 11 David Chappell John S. Clark John W. Clark, Jr. Philip H. Corboy E. S. Corlett, III Herbert C. Comuelle Ellen B. Cunningham Talbot D' Alemberte Evo De Concini Leslie B. Disharoon Thomas M. Dowling Bert H. Early John C. Elam Ronald L. Engel Bernice Englert Chester L. Erickson Robert B. Fiske, Jr. Duane D. Fitzgerald Ernest C. Floyd Fred W. Friendly Richard O. Gantz Robert L. Geltzer Raymond I. Geraldson Gordon M. Glier, Sr. Arthur J. Goldberg William T. Gossett Charles P. Gould W. A. Groening, Jr. Mark I. Harrison Jean R. Haynes Thomas B. Haynes Bernard G. Heinzen James W. Hewitt Edgar D. Hieronymus David L. Hoffberg Richard G. Huber George N. Hurd, Jr. R. William Ide, III Donald L. Jackson Lionel S. Jackson W. J. Jameson Albert E. Jenner, Jr. Julius A. Johnson Livingstone M. Johnson Norma Holloway Johnson Thomas J. Johnson Kirk Allen Jopowicz Robert E. Juceam Bruce A. Kaufman Judith S. Kaye John J. Kennelly William L. Kervick Irwin I. Kimmelman Roger R. Kolker Theodore I. Koskoff Jacob Kossman R. Arnold Kramer John A. Krsul, Jr. Noel V. Lateef Orme Lewis Philip H. Lewis Lillian Liles George N. Lindsay Lucile Lomen Robert MacCrate Noel E. Manoukian William C. Marlatt, Jr. E. G. Marshall Robert B. McKay William F. McNagny John C. McNulty Daniel J. Meador Robert W. Meserve Clifford L. Michel Jeanne S. Miller Robert J. Miller Charles S. Rhyne Victor G. Rosenblum Fletcher G. Rush Bernard G. Segal Baruch S. Seidman F. Joseph Sensenbrenner Thomas E. Sims Frank L. Snell L. L. Stewart John A. Sutro Stephen H. Suttle Richard B. Teitelman George B. Timmerman, Jr, Paul H. Titus Maynard J. Toll William E. Turnage Priscilla Utterback Donna B. Vandenberg Martha Redfield Wallace E. Robert Wallach Max L. Weinberg The American j ury and the law Judges, lawyers, political scientists, law professors, psycholo- gists, anthropologists and linguists-45 in all-gathered in No- vember, 1985 at the Johnson Foundation's Wingspread Confer- ence Center in Racine, Wisconsin for an AJS-sponsored examination of "The American Jury and the Law." Although they brought widely varying perspectives to the subject, the conferees were united in their commitment to the jury system and its improvement. The state of our knowledge of the performance and effectiveness of jurors and juries was a principal concern of the participants and, in keeping with AJS' emphasis on translating theoretical knowledge into practical improvements in the justice system, they discussed at length the questions of how to make research findings more available to those who work with juries every day. Justice Shirley Abrahamson of the Wisconsin Supreme Court brought a unique perspective to the discussion, for she had re- cently served on a jury in a Wisconsin court; her observation that j ury instructions are frequently incomprehensible even to a j udge drew considerable attention, as did proposals that jurors be al- lowed to take notes, ask questions, and receive instructions in writing. Several judges offered to translate the ideas into practice by offering their courtrooms as sites for further research into jury performance. Donald C. Mitchell M. Peter Moser Donald B. Moses Diana E. Murphy Florence K. Murray Michael R. Murray Dorothy W. Nelson John L. Newbum Melvin Newman Frederick M. Nicholas Edward S. Northrop Karl F. Nygren James K. Oppenheimer Dwight D. Opperman James M. Parkison Richard F. Perrault John C. Pinkerton William T Prince Robert D. Raven Otto L. Reinisch, III George H. Williams Glenn R. Winters Frances K. Zemans Sponsoring members Gustave G. Amsterdam David J. Armstrong J. Thomas Caldwell Charles C. Carella Kendall M. Cole William J. Currer, Jr. Gilbert A. Currie Paul William Cutler John J. Dawson Eli Whitney Debevoise Henry F. Dressel C. Sims Farr Michael Franck John Davis Gray Francis M. Gregory, Jr. Paul C. Guth John L. Hauer Clement F. Haynsworth, Jr. William E. Hoelzel Harold W. Hofman, Jr. William L. Hoisington Michael S. Home W. Stell Huie Daniel Chater Huributt John B. Jones, Jr. Ann Loughridge Kerr Norman V. Kinsey Richard F. Knight John R. Lenahan, Sr. H. Malcolm Lovett Thomas B. Marvell Robert E. McNair Hamilton Eugene McRae Peter D. Ostreich Cass Piotrowski John G. Rauch, Jr. Robert R. Richardson Jane E. Robertson Joel E. Schweitzer Thomas J. Shumard Fred H. Sievert, Jr. Bruce L. Smith Neal R. Sonnett William L. Standish Nevin Stetler Wayne A. Tenenbaum T. Donald Wade Charles I. Wellborn Robert E. Wheeler Alan Wicks Contributing members Benjamin R. Civiletti David S. Doty Henry T Reath Alvin Weiss Sustaining members Richard F. Adams William H. Adkins, 11 Fritz W. Alexander Ethan Allen Richard D. Allen Kenneth M. Anderson R. Dennis Anderson Z vid L. Applegate an Ashman Harry W. Asquith Charles E Atkinson Morris Atlas Robert E. Austin, Jr. Boyd M. Bailey William J. Baird James E. S. Baker Sharon Baldwin John Ballas Joseph R. Bankoff Burrel Barash Richard A. Barber Robert W. Barker John A. Barley Curtis H. Barnette Zeb E. Barnhardt, Jr. Samuel E. Bass Edward G. Bauer, Jr. James H. Beal Addison M. Beavers William H. Becker Thomas D. Bell Jack C. Benjamin Adam Y. Bennion Allen H. Berkman Leonard Bernard, Jr. TITX 0022319
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5[onor Roll of Donors I Corporate and Foundation Contributors Air Products and Chemicals, Inc. Alcoa Foundation Alliance of American Insurers Alumax, Inc. American Express Foundation American Home Products Corporation American Trading and Production Corporation American Welding & Manufacturing Co. Foundation Ames Family Fund Amoco Foundation, Inc. Anchor Hocking Appleton Papers, Inc. Arden Group, Inc. Armco, Inc. ASARCO Foundation The Ashland Oil Foundation, Inc. AT&T Foundation Joshua L. Baily & Co., Inc. Baltimore Gas & Electric Company The Bell Telephone Company of Pennsylvania Berkshire Hathaway, Inc. Berwind Corporation Bethlehem Steel Corporation Bowne of New York City, Inc. Browning-Ferris Industries, Inc. Bozzuto's Inc. Burroughs Wellcome Company Capitol Holding Corporation Carpenter Technology Corporation Foundation Centel Corporation Chemed Corporation Chemical Bank Chicago Bar Association Foundation J. L. Clark Manufacturing Company The Coca-Cola Foundation Computer & Communications Technology Corporation Container Corporation of America Contel Corporation Crum & Forster Foundation Dana Corporation Dart and Kraft Foundation Davis Water & Waste Industries, Inc. Delchamps, Inc. Digital Equipment Corporation Dow Chemical Company E. I. Du Pont de Nemours & Company Eastman Kodak Company Elgin National Industries, Inc. Employers Reinsurance Corporation Exxon Company, U.S.A. Exxon Corporation First Mississippi Corporation Ford Motor Company Fund Fruehauf Corporation GATX Corporation General Mills Foundation General Mills, Inc. General Motors Foundation, Inc. General Signal Corporation Georgia-Pacific Corporation Gerhardt F. Mayne Company The Gifford Hill Companies Gillette Company Gold Kiat Inc. Good Samaritan, Inc. The Goodyear Tire & Rubber Company Corporation Hancock Bank Handy & Harman Foundation Harnischfeger Foundation Inc. Hart Schaffner & Marx Charitable Foundation H. J. Heinz Company Foundation Household International The IFF Foundation Inc. International Business Machines Corporation Illinois Bar Foundation Illinois Central Gulf Railroad Illinois Tool Works Foundation Johnson & Johnson K Mart Corporation Knight Foundation Liberty Mutual Insurance Company Liberty National Life Ins. Company Thomas J. Lipton Foundation, Inc. Foundation of the Litton Industries R. H. Macy & Co., Inc. Magnetrol International, Inc. The Maytag Company McDonald's Corporation McDonnell Douglas Foundation McGraw-Hill, Inc. The Mead Corporation Foundation Merck & Co., Inc. Metropolitan Life Foundation MGIC Investment Corporation Minnesota Mining & Manufacturing Foundation, Inc. Mobil Corporation Motorola Foundation Mutual of Omaha Insurance Company National Association of Independent Insurers NCR Corporation New Jersey Bell Telephone Company NL Industries Foundation, Inc. Northrop Corporation Owens-Winois Fund The Penn Central Corporation J.C. Penney Company, Inc. PHH Group Inc. The Pillsbury Company Pioneer Hi-Bred International, Inc. PPO Industries Foundation The Prudential Foundation RCA Reynolds Aluminum R. J. Reynolds Industries, Inc. Reynolds Metals Company Foundation Rheem Manufacturing Company Richardsai Vicks, Inc. Rohtn and Haas Company Saatchi & Saatchi Compton, Inc. Santa Fe Southern Pacific Foundation The Scott & Fetzer Foundation Sears, Roebuck and Co. Shell Companies Foundation, Inc. The Signal Companies Charitable Foundation Squibb Corporation Staley Continental, Inc. The Telex Corporation Texfi Industries, Inc. TRW Foundation United States Steel Foundation, Inc. Valmont Industries, Inc. Vulcan Materials Wachtell, Lipton, Rosen & Katz Warner-Lambert Company West Publishing Company TITX 0022318
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John Benson John E. Benson Arthur A. Benson, II Warren W. Bentz Joseph Berenbaum Beatrice Berler Norman E. Berman Frank C. Bernard Marshall A. Bernstein Thomton G. Berry, Jr. G. Joseph Bertain, Jr. Frederick V. Betts Henry M. Betts John M. Bickel Irving H. Biele F. M. Bird Frank B. Bird H. R. Blackhurst Warren E. Blair Ara P. Blanc Jap W. Blankenship Lloyd E. Blanpied, Jr. Peter M. Blauvelt A. J. Block, Jr. James J. Blommers Sherwood Blue M. Joseph Blumenfeld Solomon Bogard Ralph S. Boggs John Jennings Boland Michael Boldt Paul Bonneson Vincent M. Bonventre Robert Boochever Charles Burdette Boone Joe C. Boone William Wallace Booth Marion J. Borchers Bernard M. Borish Earl E. Borradaile John C. Boutall Gary A. Bowden C. Keating Bowie Arthur M. Bowman, Sr. David K. Boyd John L. Boyd Tyrie A. Boyer Thomas G. Braddock Addison M. Bradford, Jr. Raymond J. Bradley Hyman J. Bradofsky Eugene Brady Arthur J. Braginton Inman Brandon Robert L. Brenna, Jr. Myron H. Bright Henry M. Britt Clarold L. Britton Ralph Brock Henry J. Broderick David L. Brodsky Edith Broida Thornton H. Brooks A. Freeborn Brown Calvin A. Brown E. T. Brown Michael J. Brown Peter Megargee Brown Robert L. Brown Sidney J. Brown Wesley E. Brown Kerry Jo Brown-Formato Henry J. Bruewer Jeffery A. Bruner Herbert E. Bryant L. M. Buckingham Leonard E. Bullard J. Robert Bullock Maurice R. Bullock Leonard Z. Bulman James R. Burgess, Jr. John P. S. Burke Arthur L. Burnett Joseph B. Burns Paul J. Burns Seymour I. Burton George E. Bushnell, Jr. J. A. Bussard John Butler Frederick E. Byrd Thomas J. Cahill How do the American media cover the judicial system? How R. S. Cathcart Gordon E. Causey Thomas E. Cavendish Philip M. Cedar W. B. Cedarquist Joel T Chaisson Thomas W. Challis Keron D. Chance James W. Chesnutt E. Calvert Cheston Joe Childers Bradley S. Chilton Hillel Chodos Nathan Cholodenko should they cover the judicial system? What kind of stories are being written and produced? What kind of stories are not being written and produced? Those were some of the questions dis- cussed in an AJS Workshop for Practicing Journalists in Decem- ber, 1985. Presented with support from the Knight Foundation, the workshop brought 25 selected journalists together in Phila- delphia to grapple with the basics of judicial system coverage. One participating journalist later wrote "Right now, I'd like to go back and rewrite every court story I've ever done. This workshop made me realize how incomplete and unfair most of them were.... This has been the single most helpful thing in my career." Nor was all the self-criticism on the press side of the table. "We should have a lot more dialogue so we can tell you what the issues are and what the significance of the case is," a New Jersey judge said, recogniz- ing that judges' refusal to speak with reporters may give rise to incomplete reporting. AJS is seeking sponsorship for a similar workshop in the Chi- cago area in 1986-87 in hopes of further informing the public about the workings of the Third Branch of government. Dorothy Caillouet W. Wilson Caldwell Anthony Caliendo Joseph L. Caliri Robert W. Calvert Walter Scott Calwell Amy Marie Campbell Blaine E. Capehart J. Philip Carison Richard E. Carlton William 0. Carr John R. Carr, III Ernest A. Carrere, Jr. Alfred W. Carrico James E. Carter Jeffrey Alan Carter M. Hampton Carver Charles E. Cashman, Jr. John W. Castles, III Anthony B. Cataldo Max Chopnick Nicholas A. Ciufi Frank R. Clark, Jr. Reinita Clarke L. Arlene Clav Robert L. Clifford Wilson E. Cline J. Hart Clinton Herbert L. Cobin W. K. Coblentz Donald S. Coburn Guy Coburn Harold W. Coffin W. Thomas Coghill, Jr. Avery S. Cohen David Cohen Mitchell H. Cohen Renee Levine Cohn James J. Coleman Camille Colen Theodore J. Collins David Colman C. Kilmer Combs Howard H. Conaway Franklyn E. Conflenti John E. Connelly Kiri S. Connor James S. Conway C. Randall Cook Max Cook George A. Cooney Gordon J. Cooney, Jr. Harry L. Cooper James W. Cooper Jean Saralee Cooper John N. Cooper Michael A. Cooper Chris Corbett Cletus J. Corbett George Joseph Corcoran, Jr. Leo W. Corkin J. E. Covington Benjamin Cox, Jr. Mark Crane William E. Crane Howard R. Croll A. B. Crouch Edward C. Crouch Harvey M. Crow, Jr. David Crystal, II Gerald B. Curington Thomas M. Curtin Jesse W. Curtis Karen H. Curtis Reid A. Curtis Justin W. D' Atri William D. Dahling Robert J. Danhof John B. Daniel, Jr. William F. Dart J. Thomas Dasef Leonard H. Davidson Stephen E. Davidson Gilbert H. Davis Jesse D. Davis Mattie Belle Davis Sherwood E. Davis Howard C. Davison Robert Day Guy G. De Furia Henry L. De Give Roland J. De Marco Patrick A. De Moon Stephen T. Dean William N. Dearborn William F. Delhey V. Randolph Delk Theresa E. Delorto Aubrey Z. Denman John W. Denney Frederick W. Denniston William D. Denson Raymond K. Denworth, Jr. Roger A. Derby, Jr. Dixon Q. Dern James R. De Giacomo Clarence R. de Rochemont Vincent A. Di Girolamo Mark Di Maria I. V. Di Martino Earl B. Dickerson Frederick 0. Dicus Gerald A. Dienst Clayton A. Dietrich William L. Dill, Jr. James A. Dixon, Jr. Andrew J. Di Paola TITX 0022325
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Thomas J. Di Salvo James C. Dodge Joseph S. Donchess Joseph D. Donohue R. F. Doolittle Tom Downs Lawrence H. Doyle, Jr. S. S. C. Drake Martin Drazen Julius N. Draznin Samuel Dreizen John D. Drinko Alonzo J. Drummond Winslow Drummond Ben Duggan Irene L. Dulin Adrian 0. Duplantier Franklin T. Dupree, Jr. Howard M. Dupuy, Jr. Bernard D. Dusenbury, Sr. Lloyd L. Duxbury, Jr. Thomas H. Dyer William T. Dyey Alderman Dystrup David R. Eaby Emmett E. Eagan James R. Eagleton Douglas G. Eason Kevin J. Egan Fred W. Eggert E. Charles Eichenbaur Steve Eichler Stephen K. Elliott James R. Ellis Robert L. Ellison David M. Engelson J. Daniel Ennis Alan B. Epstein Robert J. Erickson Ralph J. Erickstad Paul M. Erspamer Jane G. Eskind Jack H. Evans Robert V. Evans M. E. Evashwick Thomas E. Fairchild Ford F Farabow, Jr. Charlotte Farrish George E. Fedor Herbert Feiler Alfred Feingold Henry A. Fenn Thomas C. Ferguson Fred Ferguson-Brey Henry L. Feuerzeig Robert Figg, Jr. Lloyd Finch Iris Claire Finder J. Emory Findley Marjorie Fine Jean C. Fink Benjamin Finkel Henry Mckinnon Fisher Richard J. Fitzgerald Duross Fitzpatrick Francis J. Fitzpatrick Dudley D. Flanders L. B. Flanders Neil Flaxman Raymond A. Fleck Mark Lawrence Fleder Joseph W. Fleece, Jr. Audrey G. Fleissig Nicholas Flood, III Harold Flowers E. M. Floyd, Jr. Sanford L. Fogg John A. Fogleman Gene P. Fopp Jane Forbes Seely P. Forbes Walter D. Ford L. Paul Foreman Willis M. Forman E. Bruce Foster Ronald J. Foulis Robert A. Foust Fletcher Boyd Fowler Thomas P. Foy Paul E. Freehling Wilson Freeman Ralph F. French Robert H. Frick Richard J. Fritz Stanley H. Fuld Hilton Fuller Domenick L. Gabrielli As part of its educational activities, AJS frequently hosts distinguished legal officials from various T Richard S. Gilmore Wayne Mc K. Gilmore Alexander Ginn Ellsworth W. Ginsberg Alden H. Gjevre James M. Glasgow Benjamin B. Goldberg Samuel Goldblatt Daniel L. Golden Edward S. Goldin Harry D. Goldman Richard M. Goldstein Charles A. Gonzalez Raul E. Gonzalez-Diaz Francis John Good Jane Goodman Sydney D. Goodman Edward Gordon Victor M. Gordon Frank B. Gorski countries around the world. Working in conjunction with the Asia Foundation of San Francisco, the AJS staff helps foreign attorneys and judges familiarize themselves with the American j udicial system. Among those visiting last year were Cecilio Pe, the secretary and executive director of the Integrated Bar of the Philippines, Upawansa Yapa, Deputy Solicitor-General of Sri Lanka, and Chiu Man Ju and Lin Kuo-Hsien of the Judicial Yuan of the Republic of China (Lin is pictured with AJS Executive Director George H. Williams and an interpreter). Harriet E. Gair Henry F. Galatz Frank X. Gallagher Joseph E. Gallagher William F. Garcia Charles R. Garner Harry W. Garrett, Jr. Louis S. Gasperec Robert S. Gawthrop, Jr. Joseph D. Geeslin, Jr. Alexander Georges Martha W. Gerald Miles C. Gerberding David Gershon Leslie Gerstman Elmer Gertz Bernard J. Ghiglieri Rollyn C. Gibbs George M. Gibson John J. Gilbert R. Bruce Gilbert Charles W. Gilchrist George E. Gilkerson Arthur G. Gilkes Gordon P, Gill Tom Irvin Gill Rana M. Gorzeck Joseph A. Gowan W. L. Goyer William E. Graham, Jr. Isabella Horton Grant Thomas E. Graslie Steven P. Gray Cyrus J. Greco Alvin B. Green F. Thomas Green John G. Green David F. Greenberg Bryna Greenblatt Gerald Greenwald Ralph J. Gregg John Munford Gregory John L. Greisberger Jack Grellman Lawrence M. Gressette, Jr. Lynn H. Gressley Henry M. Griffin, III Sterling N. Grubbs William M. Gruner William G. Guernsey David K. Guest Joseph Guglielmelli Jacob S. Guthman Ernest M. Gutman Max J. Gwertzman Joseph F. Haas Francis B. Haas, Jr. Ronald E. Hachey Frank E. Haddad, Jr. Richard P. Hadley Frank E. Hahn, Jr. Kermit L. Hall Sandra F. Hall Sophia H. Hall Norbert A. Halloran A. Stevens Halsted, Jr. Richard C. Ham W. P. Hamblen, Jr. Douglass M. Hamilton Ernest Hamilton Gayle K. Hamilton William K. Hamilton Milton Handler David A. Handley Ernest O. Hanson Pauline Davis Hanson Robert G. Hanson Edward D. Harbert James W. Hardesty Carl C. Hardin, Jr. Charles H. Harff Raymond O. Harmon Matthew Harper, Jr. James F Harringron John C. Harrington Donald Harris Ewing J. Harris John W. Harris Helen S. Harshbarger Herbert L. Hart Aram A. Hartunian Wm M. Harvey Edwin H. Hastings John R. Hathaway J, F Hawkins James K. Haygood, Jr. Thomas Z. Hayward, Jr. Margaret A. Haywood Rowland K. Hazard Ben T. Head Thomas N. Healy Wallace R. Heatwole Walter Meheula Heen Philip C. Heinicke E. C. Heininger Fred Karl Heinrich Bruneau E. Heirich Dennis Helfman Arthur D. Hellman Anthony R. Hellmann Orrin L. Helstad Gilbert J. Helwig D. R. Henderson Gordon F. Henderson H. C. Henderson Kenneth L. Henderson E. W. Hening, Jr. Joseph R. Henri Ragan A. Henry Reginald D. Henry Robert B. Hensley Perry C. Henson Nat H. Hentel Albert A. Hepting David L. Herman Harold S. Herman Brad E. Herr George W. Hersey Oren C. Herwitz TITX 0022326
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I ! 0%9 American Judicature Society to promote the effective adminrstration of lustice tounded in 1913 25 East Washington Street Chicago, IMinois 60602 a12/SSB-6900 EXECUTIVE COMMITTEE Prssident: L. Stanley Chauvin, Jr. t',:hairmatr of the Board: Victor G. Rosenblum Vice Presidents: Benjamin R. Civiletti Diana E Murphy Karl F Nygren Secretary: Wrll am W Crawford Treasurer: WliamK.Slate,Il Other Members: Sh rley S Abrahamson Brooksley E Born James W. Hewitt Lillemor T. Robb Robert F. Utter Young Lawyer Member: Michaef L. Cochran Immediate Past President: Talbot D'Alemberte immediate Past Chairman: R. Arnold Kramer Executive Vice President and Director: George H. Williams BOARD OF DIRECTORS Alabama: N. Lee Cooper. C. C. Torbert, Jr Alaska: Richard O. Gantz Arizona: Mark I. Harrison Arkansas: David Newbern California: Michael H. Bierman, Judith C. Chirlin, Lillian Liles, Dorothy W. Nelson, John L. Newburn, Janae Novotny, Robert 0. Raven, Gordon D. Schaber, Maynard J. Toll, James D. Ward Col,)rado: Jim R. Carrigan, E. Gordon Gee, Edward E. Pringle, Walter A. Steele Connecticut: James R. Greenfield Delaware: Victor F. Battaglia, O. Francis Biondi, E. N. Carpenter, II, Sally V. Hawkins District of Columbia: Brooksley E. Born, William J. Brennan, Jr., Gladys Kessler, A. Leo Levin Florida: Martha W. Barnett, Talbot D'Alemberte, Ann Loughridge Kerr, Roderick N. Petrey, Gerald F. Richman, Jane E. Robertson, Fletcher G. Rush, David U. Strawn, Alan C. Sundberg Georgia: Joseph R. Bankoff, Rosalie FitzPatrick, Robert H. Hall, W. Stell Huie, John C. Mayoue Hawaii: Lawrence S. Okinaga Idaho: Daniel C. Hurlbutt, Jr. Iltinois: David C. Bogan, Michael L. Cochran, William W. Crawford, Robert P. Cummins, Thomas B. Haynes, Albert E. Jenner, Jr., Thomas J. Johnson, Thomas S. Johnson, Karl F Nygren, Victor G.•Rosenblum, Gerald C, Snyder Indiana: John R. Carr, (II, Donald L. Jackson, William F. McNagny Iowa: W. Ward Reynoldson Kansas: E. Dudley Smith Kentucky: L. Stanley Chauvin, Jr., Richard M. Sullivan Louisiana: Fred H, Sievert, Jr., Lawrence P. Simon Maine: Duane D. Fitzgerald Maryland: Benjamin R. Civiletti, Gloria G. Cole, Bruce A. Kaufman, Frank A. Kaufman, Robert L. Weinberg, Harrison L. Winter Massachusetts: John J. Curtin, Jr., Frederick G. Fisher, Jr., Roy A. Hammer Michigan: John S. Clark, Julia D. Darlow, Wade H. McCree, Jr., Henry L. Woolfenden Minnesota: G. Alan Cunningham, John C. McNulty, Diana E. Murphy, Brian P. Short, Robert A. Stein Mississippi: E. C. Ward Missouri: Elmo B, Hunter, Richard B Teitelman Montana: Robert Corontzos, W J Jameson, John 0 Mudo Nebraska: James W Hew tt Nevada: Noel E. Manoukian New Hampshire: William F. Batchelder New Jersey: William J. Brennan, III, Irwin I. Kimmelman. Stewart G. Pollock New Mexico: Robert S. Skinner New York: Herbert Brownell, Robert B Fiske, Jr.. David L Hoffberg, Robert MacCrate. E G. Marshall, Lillemor T. Robt, Maurice Rosenberg. Martha Redtield Wallace North Carolina: E. Osborne Ayscue, Jr., James B McMillan, Reid L, Phillips North Dakota: Joel D. Medd Ohio: John P. Hehman, Earl F. Morris, Robert G. Stachler, Lawrence E. Stewart, Norton R Webster Oklahoma: E. D. Hieronymus, William G. Paul Oregon: Douglas G. Houser Pennsylvania: Arlin M. Adams, Frank B Boyle, Thomas E. Brenner, Arthur D. Hetlman, Robert M Landis. Harold R. Schmidt, Bernard G Segal, William K. Slate, II, Paul H. Titus Rhode island: Joseph R. Weisberger South Carolina: Rodney A. Peeples South Dakota: Mark W Barnett Tennessee: Albert C. Harvey, R Arnold Kramer. Atwood L. Rice, Iil Texas: Cecil E. Burney, Cheryl H. Chapman. J. Chrys Dougherty. Joe R. Greenhill, Morris Harrell. Lloyd Lochridge, Blake Tartt Utah: Christine M. Durham Vermont: William B Gray Virginia: R. Harvey Chappell. Jr., Noel V. Lateet, Thomas T. Lawson, William T. Prince, Robert A Shapiro Washington: J. David Andrews, Robert F. Utter West Virginia: Robert W. Lawson, Jr. Wisconsin: Shirley S. Abrahamson Wyoming: Robert E. Heizer, Jr., R. Stanley Lowe Past Presidents (Ex Officio Directors): William J. Jameson, Albert E. Jenner, Jr., Cecil E. Burney, Henry L. Woolfenden, Herbert Brownell, Gerald C. Snyder, Elmo B. Hunter, Robert H. Hall, John S. Clark, Arlin M. Adams, Fletcher G. Rush, Robert MacCrate, E. N. Carpenter, II, Talbot D'Alemberte Past Chairmen of the Board (Ex Officio Directors): Bernard G. Segal, William J. Brennan, Jr., Elmo B. Hunter, Earl F. Morris, Maynard J. Toll, Edward E. Pringle, John C. McNulty, Dorothy W. Nelson. Martha Redfield Wallace, R. Arnold Kramer TITX 0022335
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Publicarions ''t,JTcattt"'e SC)CIF'C% Judicial Selection and Tenure Handbook for Judicial Nominating Commis- sioners, by Maria Greenstein. 1984. Order #8577. $7.95 paperback. Order #85 76. $10.95 loose-leaf with binder. In the Opinion of the Bar: A National Survey of Bar Polling Practices, by James H. Guterman and Erroll E. Meidinger. 1977. Order #202. $3.75. Judicial Retention Elections in the United States, by Susan B. Carbon and Larry C. Berkson. 1980. Order #8566. $4.00. Judicial Merit Selection: Current Status, by Donna B. Vandenberg. 1986. Order #294. $1.25. Judicial Selection in the United States: A Com- pendium of Provisions, by Larry C. Berkson, Scott Beller and Michele Grimaldi. 1981. Order #8565. $7.50. The Key to Judicial Merit Selection: The Nomi- nating Process, by Allan Ashman and James J. Alfini. 1974. Order #8128. $5.75. Literature on Judicial Selection, by Nancy Chinn and Larry C. Berkson. 1980, includes a 1985 supplement. Order #8564. $6.95. Model Judicial Selection Provisions. 1985. Order #292. $5.00. The United States Circuit Judge Nominating Commission: Iu Members, Procedures and Can- didates, by Larry C. Berkson and Susan B. Carbon. 1980. Order #8561. $ 7.50 The United States District Judge Nominating Commissions: Their Members, Procedures and Candidates, by Alan Neff. 1981. Order #8568. $7.50. Judicial Conduct Beyond Reproach: Ethical Restrictions on the Extrajudicial Activities of State and Federal Judges, by Steven Lubet. 1984. Order #8578. $6.95. Handbook of Procedures and Forms for Judicial Conduct Organizations. 1984. Order #293. $20.00. Judicial Conduct Organizations, Second edi- tion, by Irene A. Tesitor and Dwight B. Sinks. 1980. Order #8567. $3.75. Judicial Conduct Organizations: Governing Pro- visions, edited by Kathleen Sampson, up- dated by Joseph Cahill. 1984. Order #8570. $55.00. Judicial Discipline and Disability Digest, r96o- z978, edited by Judith Rosenbaum, assisted by Scott Beller and r979 Supplement, edited by Tamara Stewart and Judith Rosenbaum. $295 (library rate $150). iq8o Supplement, edited by Terrence Brooks and Tamara Ste- wart. $95 (library rate $50). tg8t-85 Sup- plement (looseleaf format with binder), edited by Candice Goldstein. $190 (library rate $100). 1984-85 update pages may be pur- chased separately for $95 (library rate $50). Judicial Disqualification Under Canon 3C of the Code of Judicial Conduct, by Leslie W. Abramson. 1986. Order #8588. $6.95. Selected Literature on Judicial Conduct and Disability: An Annotated Bibliography, by Jane vanSchaick and Kathleen M. Sampson. 1983. Order #8575. (Limited number availa- ble for $2.50 postage and handling.) Judges The Central Panel System for Administrative Law Judges: A Survey of Seven States, by Mal- colm C. Rich and Wayne E. Brucar. 1983. Available through University Publications of America. $15.00. (hardcover). Handbook for Judges: An Anthology of Inspira- tional and Educational Readings, edited by George H. Williams and Kathleen M. Samp- son. 1984. Order #8580. $14.95. (hardcover) Judicial Retirement Plans, by Timothy S. Pyne, updated by Thomas Sammons. 1984. Order #291. $6.95. National Roster of Wornen Judges, rg8o, com- piled by Larry C. Berkson and Donna Van- denberg. 1980. Order #8563. $2.95. Judicial Administration Appellate Justice in New York, by Robert MacCrate, James D. Hopkins and Maurice Rosenberg. 1982. Order #85 71. $6.95. Court Studies. A collection of more than 100 studies and surveys of various federal, state, and local judicial systems in the United States. 35mm microfilm (28 reels) with printed guide. Available from University Publications of America. $1,750.00. The Exclusionary Rule Debate, a collection of eight Judicature articles reprinted in one volume. 1979. Order #8560. $ 2.00. Judicial Rulemaking: A Compendium, by Donna J. Pugh, Chris A. Korbakes, James J. Alfini, and Charles W. Grau. 1983. Available through University Publications of America. $24.00 (hardcover). Pattern Jury Instructions: A Critical Look at a Modern Movement to Improve the Jury System, by Robert G. Nieland. 1979. Order #328. $3.75. State Court Administrative Offices (Second Edition), by Rachel N. Doan and Robert G. Nieland, Revised by Mayo H. Stiegler. 1982. Order #8572. $6.95. State Intermediate Appellate Courts, by Marlin O. Osthus, revised by Mayo H. Stiegler. 1980. Order #8537. $3.75. Periodicals Court Improvement Bulletin. Published twice each year, the Bulletin provides a complete, up-to-date listing of current, ongoing studies relating to the courts. $9.50 per year. Judicature, the bi-monthly Journal of the American Judicature Society edited by David Richert. $18.00 per year. Judicial Conduct Reporter, a quarterly newslet- ter prepared by the Center for Judicial Con- duct Organizations. $12.00 per year. Other Publications American Courts and Justice, edited by Glenn R. Winters and Edward J. Schoenbaum. 1976. Order #8553. $8.95 (hardcover). To order. Use the card opposite or con- tact AJS, 25 E. Washington, Suite 1600, Chicago, Illinois 60602 (312) 558-6900. Those available from University Publica- tions of America should be ordered from UPA, 44 North Market Street, Frederick, Maryland 21701 (301) 694-0100. TITX 0022332
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ElFil=tP€[g~~sfii111 W 11~11 .0 r .11 ttfftuiffI ~gf€Y~~~~~~air~of;3 rfI~~~~ $ ~~~sg I Ir ~ ~. ~ ~ ~~~~~~~ ~~~~~~~.~~ ~'~- T r ~ I ~a~~~ ~~. ~ ~~ ~~r~ IFILIRI}FE F ~~I" I F ~w ~~ ~ ~~ ~~ a ~~ ~ n ~y ~ n ~~~ ~~ ~ •~:~ ~ ~ ~ a~ ~~ ~ i~i7°ac ~ ~`' ~v~~%, S~a~ " y" ~7C ~~f sf Y' L o 9~ ~ ~ ~ . >x r b~~ dI~, ~z ~ r~ r ~~d~ ~ ~c n ~~~ °~ . ~ ~ i. ~ . f p . ~ ~ ~n~ ~ ~ 4 ~~~ . g~ ~~ ~ E~~~ ~ ~ ~ ~
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O.. C, pougl.. Wikk Veroon L. Wincinson Qurk. E. WiIIiamm plounoon 0. William. ;. r r Xyyn C. WiWams gic6moed L Williams ze N g. M. A Williams, Js William H. Williamson Amd H. Wilson ~durph Wilson William C. Wilson ^ilwms R. C Wilson, II Flarold E. Wintha Bern.rd W. Witneq Willis Wia QG2Us K. Wohtwad Art Wolf Henry W. Wolf B.rdie C. Wolfe gero.rd B. Wolfe William F. Womble, Jr. Joe W. Wood t,awrence M. Wood Joseph B. Woodlief M. Tnuoan Woodward, Jr. Jobn R. vPorffiicwm Caleb M. Wright Charles E. Wright Paul Wyler Nick E. Yoca Alan Steven Yoffie Keith Yonamine Frank Landon Young Irving Younger Juan R. Zalduondo James Zelman William L Zeltonoga Sally Zeman Donald E. Ziegler Barbara Zimmerman Max B. Zimmerman Louis zimmer Life member. $1,000 Contributing member: $500 Sponsoring member: $250 Sustaining manba: $100 The American Judicature Society seeks to play an active role as a link between citizens and the pustice system, as a clearinghouse for facts, opinions, ideas, and research on improvements in the administration of justice. It will continue to be an independent, objective voice, comparing the ideals of fair and impartial justice for all with the realities of judicial administration in action, pointing out where changes may be needed and improved performanoe. i, possible. The Society sha11 strive to: 1 Improve public understanding of the fundt- mental role of the justice system in contetnposar! America and of the relationship of citizens to the system. Develop and secure the adoption of impartial for selecting judges at all levels of Amaian . in order to ensure selection of indhri- of outetanding ability, intepity and '_ " Gift. by bequest or trust are essen- tial to the strength and vitality of the American judicature Society and assure the long-tcnn continuance and growth of its work. Such gifts should be deaignated -for the benefit of '"The American Judicature Sodety, to Pto- mote the Effective Administration of justice, an Illinois Corporation." If you would like more information on providing for the Society in a bequest or trust, please write to Cxxxr H. Williams, Executive Vice Pr t and Director. 4Develop and secure adoption of fair and impartial discipline and removal procedures for judges at all levels of American government which will not compromise judicial independence and which will ensure that improper conduct or disability will not be tolerated. 5Emmd ppublic and professional understanding of the need for: • An effective and efficient justice system, organized, adnninistered, and financed on sound principles of public admi~snation. 0 A capable, impartial, and independent judiciaryy, selected and retained primarily on profesedonal merit rather than political qualifications. • Adequate compensation and retirement benefits for alU justice system personneL ., _ 6 Cooperate with other organizatioes in the United States and abroad to promote the effective administration of justice. = „ TITX 0022331 .W~
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n C M an c .rnniam R. aiu{atn H. McClendon, III C. McClerkin ilJr. J~ A. McElligott (haries E. McGee Michael J. McGill Joseph E. McGuire C,oorge W. McGurn Charles E. McHale, Jr. Robert D. McIIwaine, lII ThOtnas McKay, Jc Brian.6 McKeen James P. McKenna M. A. McKichan Donald C. McKinlay Vincent L. McKusick David C. Mc > la f Walton J. WilliamJ• McLeod George W. McNary Michael E. McNichols Richard C. Meaux E. L. Mechem Cordell D. Meeks, Jr. Milton G. Mell Arthur C. Mentall Bernard S. Meyer Robert E. Meyers Hannes Meyers, Jr. Stanley P. Meyerson Augusto P. Miceli James H. Michael, Jr. David M. Michaelson Francis Fay Miller J. Lee Miller W. S. Miller, Jr. Louise C. Millikan Virgil F. Mills Morris Mindlin Albert N. Minton D. B. Mitchell Jack D. Moertl Samuel E. Molter Hardy Moore Mary E. Moore Taryn Moore Nestor Morales R. Lauren Moran Joseph H. Morey, Jr. John R. Morgan Temple H. Morgett Joseph A. Morrissey J. T. Morton Franklin W. Morton, Jr. Richard M. Moak Robert L. Most J. Arthur Mozley Januarius A. Mullen William G, Mulligan Robert A. Munro Winthrop R. Munyan Charles H. Murchison Wallace C. Murchison Joe Murphy Robert B. L Murphy Buvene J. Muttet Richard B. Musgrave Kuhy Musalewhite cWrles J. Myers Mary Nadworny John E. NaQle Paul J. Nangie Ernest]oseph Nauful,Jc Jerome O. Nealon David A. Nelson Gary K. Nelson Phyllis S. Nesbit Clarence W. N4er Donald C. Nierabach Walter L Nixon, Jr. Paul Noelke Richard L. Norman Eldon H. Nyhart Robert W. O'Brien Francis J. O'Byrne Veronica K. O'Connor John F. O'Hara Patrick J. O'Hara William W. O'Hearn Mary Ann Oakley Marvin Oates Richard W. Odgers Ward H. Oehmann Jack F. Olsen Under the sponsorship of People to People, an AJS delegation of judges and lawyers, all traveling at their own expense, visited the Soviet Union, E. Grady Paul, Jr. Leon S. Paule Mary Libby Payne Edwin B. Pearce, II Niels L. Pearson Willard H. Pedrick Wilbur F. Pell, Jr. Mary C. Periain Proctor R. Perkins Robert S. Perkins H. Holcombe Perry, Jr. John B. Petermann Philip G. Peters Steven F. Petersen Floyd D. Peterson William R. Peterson Robert A. Petrie Richard A. Pettigrew James R. Phelps Hungary, Austria and Switzerland during late May and early June. At a meeting in the Leningrad Hall of Friendship, delegation members discussed legal system differences with representatives of the Association of Soviet Lawyers and members of the Lenin- grad Law Faculty. Later, in Moscow, they met with Soviet journal- ists, including the editor of Isvestia, a correspondent of Pravda and the Secretary of the Union of Soviet Journalists. A visit to Budapest was capped by a meeting with the Minister of Justice and in Vienna the group witnessed a criminal trial as special guests of the President Judge of the Landisgerichta 1 Harriett S. Olzendatn Telford B. Orbison Walter R. Orme Norwood B. Orrick Ronald G. Ort Paul E. Overton Dorothy S. Owens Alfred M. Pabst Lester E. Page Mark P. Painter Peter R. Palermo Lynne L. Pantalena Thomas J. Paolino James L. Pardue Richard C. Park Thomas B. Park Glenn Parker James A. Parker Kathleen Parker Michael D. Park& James L Parria. Huber R. Psrwns, Je Nadine L Pastolove Richard L. Patrick Francis H. Patrono Pat J. Patterson Robert A. Patterson Nathan Patz Charles W. Phillips George L Pifer John T. Pigott, Jr. John M. Pikkaart Amos M. Pinkerton Milton Pinsker Ronald A. Piperi Michad J. Pitur David E. Place William Platt Samuel Pleasants Bettina B. Plevaa Lawrence E. Pltunmer Julie Gail Plunkett Earl E. Pollock Iree W. Pope Jerome V. Porter Thomas M. Powers David PraOer Kenneth C. Priao_e C. H. Pritc}rtt. Kenneth C. Ptqcoor David A. Provo.c Robert G. Puah A. L. Purringinn, Jr. Barbara Ann Purvis Alfred W. Putnam Nancy A. Qpatdebawn TITX 0022329 Douglas S. Qyerin William J. Qpinn Norman Rabineau Alwine Mulhaatt Ragland Charles Rand Harry Randall, Jr. Charles Constant Rankin Alan J. Raphaeli Simon Rapoport David N. Ravin Kim Ravitch-Pollock Paul E. Raymond Walter N. Read Warren J. Rees Colleen M. Regan Gerald A. Regnier Toni Rembe Augustine A. Repetto Anthony Repici Judith Resnik Clarence F. Rhea Elwood M. Rich Giles S. Rich Charles Richardson Tally D. Riddell Harry H. Riddick Mitchell S. Rieger Edward P. Riley William H. Riley James E. Roan James L. Robertson Edward T. Robinson Paul W. Robinson Manuel M. Rocker John H. Rockwell Lewis A. Rockwell John J. Roethel Elias M. Romley William L. Rone H. Chapman Rose Hymen Rosenberg Robert M. Rosenberg Max Roaenn Frances T. Rosich Edward J. Rosa Arthur Roth George W. Rothschild Henry L Rothachild Robert J. RouNer Stephen A. Row N. Arthur Rubiaaff '~ Elmer C. Rudy William L Runyon, Jr. Dwight M. Rush Paul Gia Russo Cornelius O. Ryan James J• Ryan Robert C. Rybac]t Wayne M. Sakai Ed W. Sale Mal Andrew Salvadore Seymour Sunuel., Jr. Francine D. Sut Antonio R. Carter Sanders, Jr. Miles F. S.ndler Raymond N. Satter Dickson M. Saunders Jack M. Savite GeoeP P. Sawyer Robert N. Sawyw Bertram M. Sose Hyman L Sduffet Hilbert 3chauer Henry E. Scheffler John E. Scheifly Lajos Schmidt
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Hilmer L Schmidt, Jc Elaine Carol Schneider Hubert H. Schultz Harry Richard Schmnacher Severin H. Schutger Erwin H. Schutt Rua.ell K. Schutt Edward S. Schwartz Edward L Schwam Sheila F. Schwartz Larry Scott Michael J. Scott Theodore R. Scott John F. Scott, Jn Charles L Scudder Mary Ann Seare Frank T. Sedlacek Mark A. Segil Hoken S. Seki Norman H. Selke Neil Selman Lester J. Senechalle Pete Sessions John 0. Sevcik Russell B. Seymour Richard J. Shackleton Norma L Shapiro John J. Sheehan Richard B. Sheffleld Samuel T. Shelton Gordon Shepard Elizabeth J. Sher Shimon Shetreet PaulJ. Shiben Katherine Shilling Steven Shobat Wilson E. Shoup Kendall H. Shoyer Edward F. Shramek John M. Shuey Richard E. Shugrue Joseph A. Siegel William S. Silaby, Jr. Milton L Silver Alex Silverman Eugene J. Silverman Louis E. Simhauser YounQ J. Simmons Albert L Simon David Simon Edwin O. Simon Jonathan D. Simon Ray R. Simon Charles R. Simpson Gordon Simpson David P. Sinai Harold Brown Singleton Gordon Sinykin Morris K. Sirote Marshall L Small Mendel Small David S. Smith Edward A Smith George R. Smith Henry R. Smith, Jt Hugh R. H. Smith James E. Smith Julius C. Smith, III Kendrick Smith Larry G. Smith Louis D. Smith Lyman H. Staith Maxine S. Smith Russell E. Smith Sidney W. Smith, Jr. Wedon T. Smith Wilbur C. Smith \ Willis C. Smith Casbeer Snell, Jr. Gerald C. Snyder Richard A. Snyder Perry H. Sobe! Gus J. Solomon Alkn B. Sorensen Arne Sorenson Laurence Sovik Joseph F. Spaniol, Jr. Edward B. Spence Edith L Spivack Stanley Sporkin Georr Squire William J. St. John, Jr. Richard T. Stabnick Hugh Stanford Marjan Peter Staniec Thomas E. Stanton, Jr. Harry S. Stark Hugh E. Starnes L William Staudenmaier Edwin R. Stauffer Michael L Steindam Fred M. Sullivan George H. Sullivan Henry P. Sullivan James E. Sullivan John J• Sullivae, Jr. Philip D. Sullivan Allen E. Suaman Herbert A. Swanson Arthur W. Swarner Richard S.vartz James 0. Sweeney Lisa Sweeney Michael Sweig Ronald O. Sylling John E. Sype Enrique P. Syquia Jack J. Taffer Robert Taft Gennaro V. Taiani Robert D. Taichert Hiroshige Takaeawa Harold Takooshian Viola J. Taliaferro Jeptha C. Tanksley Coming This Year In celebration of the Bicentennial of the U.S. Constitution, AJS will produce a radio series exploring the constitutional founda- tions of the justice system and the historical, social and political realities that shape our courts in operation. Two scholars and an award-winning broadcast journalist will explore some of the prin- ciples which establish and define judicial power (set forth in Article III and Amendments IV VIII) and their relationship to the contemporary administration of justice. It is anticipated that the series will be made available for classroom use. AJS is also planning a conference focusing on child abuse and the courts. Researchers and practitioners from a variety of disci- plines will work together to identify areas of the criminal justice system that seem ill-suited or inappropriate to deal with the sensitive issues in child abuse cases, explore some of the legislative and procedural changes proposed to cope with this problem, and identify issues for future research. I Leonud J. Stem Albert M. Stevens William A. Stevenson H. Francis Stewart J. Douglas Stewart J. Hamilbon Sxw+art, m Roy H. Steya John B. Stigall, Jt: William A. Stiles, Ja Francis B. Stine Mark A. Sdnnett Karl J. Stipher Laurenoe A. Sdth Janec Sttven John B. Stnddus, Jr. Joseph J•Strasb%~ Snnford L. Strogot~ . Jo.peh Q. Sailb, Jk't._. Era+in L SeuNar William J. seurgin Jack Stutnun William J. Su®.ra Kathryn G.SuQrue Theodore Taunenwald, Jr. James R. Taylor Maureen Taylor Robert C. Taylor Sara E. Taylor William F. Taylor Herbat H. Taylor, Jr. Josepi*J.1U.lhofa Bernard W. Thomas D. Robert Thomas Motyaa'Ilwmaa Ilwmaa A. Tliaon Beverly T. Thoeip.oa Georoe R. Thornton J. Edward Thoentoa John C. Ttmpp Jolm Q Tirrod - Bruoe I41. '[lremoor - ' cb.rler& Tindih, JO Sigmund M. Toay.kt J. 0. Tourkow Frank Townend M. B. Townsend, Jr. Monroe W. Trdm.n Barry Trifiletti Sandra Trionfini Gloria Tucker Richard B. Tweedy Deborah A. Tyack George G. Tyler George J. TranW Erwin Ira Uhnan Olen Underwood James A. Urban Robert Vaaler George W. Vakoa Francisco Valdea Robert J. Vandaworker Gerald W. Vande Walle Paul W. Vapnek Ben F. Vaughan, III Frank J. Vecchione Joseph C. Vesely Robert E. Vick Luis M. Villaronga Robert B. Vining Joseph A. Vitell Betty M. Vitousek Anthony A. Vitti Mildred A. Vlaich Jay M. Vogelson William G. Vogt Marlin M. Volz Kimber E. Vought JerryWagner Robert H. Wagner John Wilson Wagstaffe IIl Kathleen Waits A. Norrie Wake Charles E. Waklron Harold W. Wales Clarence W. Walker Harvey D. Walker, J. D. Homer A. Walkup Merrill C. Wall Thomas W. Wallace Richard J. Walsh Carrol S. Walsh, Jr. Stephen E. Walter Mark W. Wasserman Margaret Waterfill Frank Watson Thamas S. Weary Landis Weaver James E. Webb '~ Georgia A. Webster Martin H. Webater . Paul C. Weick Robert L. WeinberQ William Robert Weinstein William J. Weipert Joseph R. Weiaberger Charles M. Wells Richard H. Wels Frpncis H. Wet,dc Robert A. Wenke William W. Wenner John C. Wealey Philip L Waoerm.n Ben Scott Whaky Helen Araeaiu Whise William Whioe, h D. Elliott Whidock Geotye W. Qhitney. LLh Whit.on David R. Wisodr Hilton A. Wick T. Fred Wicker Stanley W. Widge'G Jt Gary E. Wieczorek , , TITX 0022330
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Albert M. Herzig Michael D. Hesa Roberta Hea Sidney J. Hess, Jr. George P. Hewes, III Lawrence Hickey Deborah Whitmore Hicks Tom Hieronymus Edward Higinbothom Odone B. Hill Andrew J. Hill, Jr. Maurice J. Hindin William T. Hiraoka J. Gareth Hitchcock Michael E. Hobbs Bruce I. Hochman Herbert E. Hoffman Walter E. Hoffman John W. Holleran Powell W. Holly, Jr. Barbara D. Holman Marion H. Holmes, Jr. Hans J. Holtorf, Jr. John I. Hook, Jr. Charles N. Hooper J. B. Hopkins Frances L. Horn Charles A. Horsky Darrell R. Hottle D. Douglas Howard Jack M. Howard Jeff Hoyle Tong Shong Huan Harold B. Hughes Michael J. Hughes Peter J. Hughes Vester T. Hughes, Jr. A. Bryce Huguenin Locke R. Humbert J. Orville Humphries John Huneke John W. Hupp John J. Hurley Harris H. Huston Lawrence W. lannotti Carl F. Ingraham Robert J. Ingram Sidney Pugh Ingram L. J. Irvine Louise V. Iaaaas Kenneth G.Jabkxnki John N. Jackson Charles Jackson, Jr. Barry S. Jacobson John T. Jaeger Lorraine B. James Philip E. James Richard H. James Walter Joe James, Jr. John A. Jamison Jamille G. Jamra Gwenellen P. Janov Ken jenkins Thomaa M. Jenkins John Paul Jennings Russell C. Jewell Michael F. JikJc Wllfred Jodoin Jerome W. Johnson Lawrence D. Johnson Rufua W. Johnson Edwin J. Jolly A.HanbyJone. Bourke Jones Bradley T. Jones Franklin Jones Ira Milton Jones Russell T. Jones Shirley A. Jones Suzanne E.Jotus Glendon H.Juergena J. R. Julian Olga Jurco Carolyn Royall Just Robert A.Ka4an Ronald H. Kahn William H. Kain Gerald W. Kalina Shiro Kashiwa Frank A. Kaufman Thomas Giles Kavanagh Milton W. Keefer Scott K. Keefer W. David Keith Richard P. Kelleher Donald E. Kelley Aaron M.Kohn Harold Kolovaky Russell K. Kono Edward F. Koren Harry K. Korie Worthy B. Kranz Miriam R. Krasno Phillip Kraus Horace Krever Gordon H. Kriekard Robert S. Krockey Bert W. Kronmiller Frederick S. Krupp Nancy L. Krzton Theodore R. Kupferman Jerome F. Kutak Stanley A. Kwelkr- Myron E. La Rowe Raymond L. La Vere AJS publications AJS initiated a new series of publications called "Studies of the Justice System" to encompass scholarship and research work conducted with the Society's assistance and under its aegis. The first publication to carry this imprint is a monograph on Judicial Disqualificcuion under Canon 3C of the Code of jtulicial Conduct by Professor Leslie W. Abramson of the University of Louisville School of Law. Other works in this series are forthcoming. To complement its Institutes for Judicial Nominating Commis- sioners and The Handbook for ]udicial Nominating Commissioners, AJS has developed and published Model Judicial Selection Provi- sions, which include constitutional, statutory and executive order provisions for creating and implementing a merit selection plan. And, as part of its historic interest in judicial selection, the Society has compiled two sets of tables, Judicial Merit Selection: Current Status and Judicial Selection in the States: Appellate and General Jurisdiction Courts. AJS also publishes the Judicial Condtiu.rt Reporter, which keeps judges and conduct organization staffs abreast of the latest deci- sions and thinking concerning acceptable behavior by judges, and the Court Impramnent$dletin, which sutnmarizes: research and technical assistance projects in the field of justice improvement, as well as listing recent publications of interest to those in the field. Aurel M. Kelly Roger W. Kelly Robert R. Kern, Ja Ben L. Kesdrrgeri Jc Alfred K. Keascnb.um- Orman W. Ketch.eo- c:harlea J. Ktddi.uy Jt GeorwKimbrough AlaQ G. Kirk4 lfi Irvis,10149kerdbausn. Docadiea 1& Klybat. ` Robat 4 K4ta - " Henry Kkp.k James Revere Knight Joseph F. Knowles William C. Koch, Jr. Frank Kockritz John D:Labelle Theo4ioie J. Labreoqw Kriatens Iarndw Milton W. L®proplar HaroidJ. lam1v~ John C. Lam Jules Iaos Fredaiek E. LayeJ D.ie I. Iaeisaie4; N«as.o W:. tmissadlk4aA Lwt~r.~~ ,~~= Roy Faiefiot L,a.IP~y JEF% .,: v~i ~ Michael Wm. Lebroe James P. Lee Thomas Gregory Lee David F. Lee, Jr. Henry M. Leen TITX 0022328 David Leff Saul Lefkowit: Robert A. Leflar Jay E. Lehman Morris I. Leibman Vance E. Leininger Stephen C. Leonard James R. Leone Albert J. Lepore Hyman H. Lev Morris Levenberg A. Leo Levin Amy S. Levin Joseph Lewis Kay Roberts Light SteQ J. Lignell J. Bowie Lillard Orley R. Lilly, Jr. C. Walker Limehouse James G. Lindell Leonard E. Lindquist William L. Lipkin Louis Lipachitz James E. Littell Gloria Lockridge Harry A. Lockwood Gregory A. Long Oecar L. Long Charles E. Long, Jr. M. M. Long, Jr. John E. Longinotti Felicitas S. Lopez Julius L. Lotterhos, Jr. Rodney M. Love Robert C. Lovejoy George F. Lowman Joseph Lubeck Lawrence A. Ludens Ralph D. Lukens Dwight Lunm John M. Lynham M. Arnold Lyons Enoch V. Maffeo Milton M. Maharam Edward J. Mahoney Howard Mahoney Peter L Malkin Roeser Malone Frank P. Mandno Agustin Mangu.t fkrnandet MilitManier Robert E. Maunheimer Richard E. Maaning Beade Margolin Leon J. Markeoos Arthur Markewich Royal D. Marks Gerald R. Marshall Louis E. Marshall Robert D. Marshall A. B. Martin Jacob H. Mardn Franklin W. Martt TakaahF Maeue, Jobnnie W. Mi.k, Jt' ' ' Milton D. Maana - a Willi.m Tr bta.oR. . Chrks D. - Joseph ld. )wlydtlwi" R. D. M.n.@il,„tJsP`. . ,~ J,do. G J. E. Mayes Robert C. Maynard John J. McAulay Floyd W. McBurney Gerald McCann
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