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If you have issues viewing or accessing this file contact us at NCJRS.gov. •• A ..... __ ... -... ~ '" - ---! --- - ! I I ... • ... I - \(s Federal Judicial Center ~ @) I I j THE FEDERAL JUDICIAL CENTER Board 'The Olief Justice of the United States Chlli,.",lIn Judge J. Cliffurd Wallace Ollef Judge William C. O'KclIey United Statts Court of APPeills United States District Court for the Ninth Circuit Northern District of Georgill Judge Moruoe G. McKay Judge David D. Dowd, Jr. United States Court of APPeills United States District Court for the Tenth Circuit Northern District of Ohio Judge Jose A. Cabranes Judge Robert E. Ginsberg United StRter District Court United Stlites Blinkruptcy Court District of Connecticut Northern District of Illinois L. Ralph Mecham Director of the Administr(l.tipe Office of the United States Courts Director Judge John C. Godbold Deputy Director Charles W. Nihan Division Directors Daniel L. Skaler Russell R Wheeler Continuing Education & Tr(l.ining Spuml Educ(l.tioniJi Senicer William B. Eldridge Richard D. Fennell Resellrch Innop(l.tions & Systems Depewpment Alice L. O'Donnell Inter-]udicml Affllirs & Information Senices 1520 H Street, N.W. Washington, D.C. 20005 Telephone (202) 633-6011 The Federal Appellate Judiciary in the Twenty-first Century Cynthia Harrison and Russell R. Wheeler Editors 123666 u.s. Department of Justice National Institute of Justice This document has been reproduced exactly as received from the person or organization originating it. Points of view or opinions stated in this document are those of the authors and do not necessarily represent the official position or policies of the National Institute of Justice. Permission to reproduce this_ I material has been I;1Jntfild..by .., gl:'uoJ.~c Domain Federal Judl.cl.al Cent~ to the National Criminal Justice Reference Service (NCJRS). Further reproduction outside of the NCJRS system requires permis­ sion of the ....owner. Federal Judicial Center 1989 This publication was produced in furtherance of the Center's statu­ tory mission to develop and conduct programs of continuing educa­ tion and training for personnel of the federal judicial system. The statements, conclusions, and points of view are those of the authors. This work has been reviewed by Center staff, and publication signi­ fies that it is regarded as responsible and valuable. It should be em­ phasized, however, that on matters of policy the Center speaks only through its Board. Cite as C. Harrison & R. Wheeler, eds., The Federal Appellate Judiciary in the Twenty-first Century (Federal Judicial Center 1989). FJC-SES-89-1 Contents Preface John C. Godbold..................................... ............ 1 Introduction William H. Rehnquist ....................... 9 Chapter I The F1IDctioning of the Federal Appellate Courts in the Future Maintaining the Quality of the Federal Appellate Bench Griffin B. Bell ......................................................... 17 I: Maintaining Effective Procedures in the Federal Appellate Courts John J. Gibbons ..................................................... 22 The Changing Character of Legal Clerkships William J. Bauer ........ , ............................................ 29 Governance of the Courts and Structure of the Circuits John C. Godbold ................................................... 32 iii Contents Chapter II The Role of the Federal Judiciary and the Future Allocation of Jurisdiction Martin H. Redish ........................ 39 Commentary Levin H. Campbell A Ne1V Tier? ........................................................... 53 A. Leon Higginbotham, Jr. Federal Jurisdiction: The Essential Guarantor of Human Rights........................................................ 57 Jon O. Newman Discretionary Access to the Federal Courts ................. 63 Chapter ill U.S. Courts of Appeals and U.S. District Courts: Relationships in the Future Paul D. Carrington........................ 69 Commentary William J. Holloway, Jr. Certifying Questions to State Supreme Courts........... 93 Joseph E. Weis, Jr. Restoring the Authority of the District Court............ 97 iv Contents William W Schwarzer Defining Standards of Review .... ............. ..... ....... .... 100 Chapter IV The Relationship Between the Federal and State Courts Laurence H. Tribe ........................ 105 Commentary Alvin B. Rubin Reallocation: A Two- Way Street .............................. 123 Robert C. Murphy Pe'rceiving Competence in the State Courts................ 127 Chapter V Uniformity of Federal Law A. Leo Levin ............................. 131 Commentary Byron R. White Enlarging the Capacity of the Supreme Court ........... 145 Donald P. Lay Efficiency and Deference.......................................... 148 v -- --~~~- Contents Pierce Lively A I-ong-Range View ................................................ 153 Mary M. Schroeder Clear LawSj Clear Opinions ..................................... 157 Chapter VI Perspectives from the Circuits: Maintaining the Character and Collegiality of the Courts of Appeals A Healthy and Diverse Judiciary Charles Clark .......................................................... 163 Goodwill and Dedication Harrison L. Winter ................................................. 167 Calendars, Collegiality, and Other Intangibles on the Courts of Appeals Patricia M. Wald .................................................... 171 Chapter VII Perspectives from the Judicial Conference: Accommodating the Tension Between National and Decentralized Administration Awakening the Judiciary: Recent Developments in N ational Judicial Administration Wilfred Feinberg ... ................................................. 185 vi Contents The Role of Technology in the Future of the Courts Howard T. Markey ................................................. 193 Chapter VIII Working With the Congress of the Future Frank M. Coffin.......................... 199 Chapter IX The Governance of Space Societies William J. Brennan, Jr..................... 215 Appendices Appendix A. Thoughts for a Third Century: A Roscoe Pound Vision by Paul D. Carrington ....... 227 Appendix B-l. Judicial Conference of the United States and Its Committees, September 1988 ........... 231 Appendix B-2. Additional Committees of the Judicial Conference of the United States ................. 249 Figures .......................................................................... 251 Contributors ............................................................... 269 vii Preface John C. Godbold Director Federal Judicial Center Nmv TITLES INQUI~Y NCJ -~ ... --....... ---..--.- ---- SPECIALIST . --~J_,--~ ~_W:.L~ ~ ,PGY **************************************~*~*~************~****~********************* -I " Please indicp whether this docum. ent is appropriate f~r NEt" TITLES: Yes _~_____ Category ~ No , Return to Collection DevelPpment S~pervisor -~~t;( JC4~ he October 1988 conference for all federal appellate T judges, arranged by the Federal Judicial Center, recognized the 200th anniversary of the federal judicial system. It also provided an opportunity for collective analysis on the future of the appellate courts. This meeting, was, as far as we know, the first such conference in the history of the Republic. The conference examined the role of the federal appellate judiciary in 1988 and how this role might be performed in the future. This is not a volume of conference proceedings. It is a volume of essays and commentary drawn from the proceed­ ings and reworked for publication. There are contributions by appellate judges themsdves; by those with whom they work most closely, such as district judges, justices of the Supreme Court, and state judges; and also by their familiar observers from academe. I express the appreciation of the Federal Judicial Center to all the speakers and participants at the conferenC'e. 1 So, too, I extend my own thanks and the gratitude of the appellate judges to Judge Jon Newman, Second Circuit, chairman of the Center's appellate education committee in 1988, which planned the conference, and to his colleagues on that commit­ tee-Judges Daniel Friedman, Federal Circuit; James Logan, Tenth Circuit; and Kenneth Starr, then on the District of Columbia Circuit and now Solicitor General, all of whom also presided at conference sessions. I would also like to recognize the staff of the Center for their fine work on this volume: for editing and design, Martha Kendall of the Editorial Department, and for help in creating the figures, Deirdre Golash of the Division of Special Educa­ tional Services and Joe S. Cecil, Donna J. Stienstra, and Patri­ cia A. Lombard of the Research Division. Elizabeth McGrath, Chief of the Judicial Information Branch, Statistical Analysis and Reports Division, Administrative Office of the U.S. Courts, promptly provided the most recent data on court ac­ tivity. 3 Preface On some points there is no disagreement among the con­ tributors to this volume concerning the role of the federal ap­ pellate courts and how it might be performed in the future. The appellate judiciary needs to maintain its capacity to inter­ pret the law, to oversee the work of the district courts, and to provide a decent professional life for its members. The bur­ geoning caseload constitutes a threat to the character of the appellate bench. Docket clearing must not subvert the courts' constitutional responsibilities. On this much, there is no ar­ gument. Other questions, however, provoke considerable dis­ cussion. Martin Redish, professor of law at Northwestern
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