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25089NCJRS.Pdf If you have issues viewing or accessing this file contact us at NCJRS.gov. This microfiche was produced from documents received for I •I D I I •" " " •" I D inclusion in the NCJRS data base. Since NCJRS caJ.!:,lot exercise ~ 11 control over the physical condition of the documents submitted, I I D the individual frame quality will vary. The resolution. chart on ~ I ~ • this frame may be used to evaluate .the ·document quality. -.~~ j ,',j~ AI,)' 'I' ". I "U, ','0 • I ,'~ ~" , ') ~ 1- I , ',0 'I ,1/, IJ ; J, " "',, ~ 1.1 Volume IV: Appellate Justice 11111 1'.25 111111.4\\\\\1.6 inl the Federal Courts To Be Discussed-January 25-26 MICROCOPY RESOLUTION TEST . CHART NATIONAL BUREAU OF STANDARDS-1963-A ' , t.. _"'''''' __' ~~••. _._ .'" ..... -......... -,,-.,~-- ............. - ' .... _.................... .. .... .. Microfilming procedures used to ,create this fiche comply. with ! • , the standards set forth in 41CFR 101·11.504. > . Points o! view or. opinions state~ in, this ,document are those of the author! sj aqd 'do no't represent the officia" positioll or policies of the U.S" Departmu"t of Just'ice. I Ii;' ," ,I' 'I I I' • I I ' • I ~ I III," .,.11.1. I'III.~ . U.S. DEPARTMENT. OF' JUSTICE I I , ~!""" ",~ ,'" lAW ENFORCEMENT ASSISTANCE, ADMINISTRATION 1.11 '1,.11;'11;'1 i'l "'1.1;' 1" II' nONAl CRIMINAL JUSTICE R/£FERENCESERYICE • I ,II II ;. NA . ".,.• ,1' , ".' WASHINGTON,D.C .. 20531'" .'\~, '. l ! " , ~ j.\ This Conference has been planned "by the Advisory Council for App'ellate Justice, a 33-member group which jointly advises the National Center for ; State Courts and the Federal Judicial Center on the work of appellate courts. ,The Council is comprised of state and federal judges, practicing lawyers ~nd law teachers in roughly equal numbers. Financial support has .been provided by grants from the law Enforcement Assistance Administration and the Council on Law-Relatea Studies. APPELLATE JUSTICEt) 1975 -­ Materials_'fQf a,N9-tional Conferencey ~:.p";t,~.'.',.,.~,,,;.;>.4."'.~'.""'""--." > • ;; ,">-..~~., MEMBERS . San Diego, Jan@ry ,23-26,) Professor Maurice Rosenberg, Chairman Honorable Griffin B. Bell Honorable Charles D. Breitel Honorable Louis H. Burke Professor Paul D. Carrington Honorable Winslow Christian Dean Roger C. Cramton Honorable Wilfred Feinberg John P. Frank, Esquire Honorable Floyd R. Gibson Honorable Horace W. Gilmore Honorable William A. Grimes Honorable Erwin N. Griswold Honorable James D. Hopkins Seth M. Hufstedler, Esquire Honorable Shirley M-. Hufstedler , I Honorable Charles W. Joiner Honorable Benjamin Kaplan Professor Delmar Karlen Professor Robert A. Leflar Honorable Harold Leventha1 edi ted by Honorable Wade H. McCree, Jr. Honorable Carl McGowan I Professor Daniel J. Meador Paul D. Carrington Professor Russell D. Niles Professor Alan Polasky Honorable Walter V. Schaefer Dean Murray l. Schwartz Honorable Albert Tate, Jr. Number 75 TA 99-0002 awarded by the Honorable Roger J. Traynor This project ~s supported ~Yf~~~~~ent and Criminal Justice o! ,t~e Law Honorable Joseph Weintraub, National Instltute of Law .n. 'U S Department of JUstlce, Honorable John Minor Wisdom Enforcement Assistan~e Admlnlsirat~o~~fe'St~eets Act of 1968. \ points Bernard E. Wjtkin, Esquire under the Omnibus ~r1me .co~tro a~, d:~ not necessarily represel~t the of view reflected ~n thlS ocum~n f Justice. Preparation of these position of the U. S. Departmen 0 t from the Council for Law-Related SPONSORING ORGANIZATIONS materials was also supported by gran s Studies .and West Publishing Company. National Center for State Courts Federal Judicial Center Honorable Edward B. McConnell, Director Honorable Walter E. Hoffman, John C. Ruhnka, Esquire, Project Liaison Director William E.Benjamin, Esquire, Conference William B. Eldridge, Esquire, Implementation Programs Project Li,aison ., DETAILED TABLE OF CONTENTS ·" VOLUME IV I CHAPTER 8 REVISION OF. THE FEDERAL COURT APPELLATE STRUCTURE: GOALS AND ALTERNATIVES 1 A. POSSIBLE LIMITATIONS ON DISTRICT COURT JURISDICTION 2 Friendly, Federal Jurisdiction: A General View (1973) 2 Frank, Book Review (1974) 17 Carrington, Book Review (1974) 18 B. CIRCUIT REALIGNMENT AND THE LAW OF.THE CIRCUIT 22 C.R.F.A.C.S., The Geographical Boundaries of the Several Circuits: Alternative Proposals (1973) 22 Friendly, The "Law of the Circuitll and All That (1972) 42 Carrington, Intercircuit Heterogeneity (1969) 45 Hufstedler, Courtship and Other Legal Arts (1974) 50 Carringtoh, United States Appeals in Civil Cases (1974) 52 C. SPECIAL PROBLEMS AND SPECIAL SOLUTIONS 66 , Griswold, The Need for a Court of Tax Appeals (1939) 66 Advisory Council on Executive Organization, The Administrative Court 73 Whitney, The Case for Creating a Special Environmental Court System (1973) 76 Friendly, Specialized Federal Courts (1973) 91 Nathanson, The Administrative Court Proposal (1971) 106 D, THE LIMITS OF THE SUPREME COURT 121 Freund, A National Court of Appeals (1974) 121 I Alsup, A Policy Assessment of the National Court of Appeal s (1974) 132 I II j I I -' E. MULTI-PURPOSE REVISION 159 A.B.F., Accommodating the Workload of the United States Courts of Appeals (1968) 159 American Bar Association, A National Division (1974) 161 A.C.A.J., Recommendation for Improving the Federal Intermediate Appellate System (1974) 163 Rosenberg, Planned Flexibility (1974) 165 Carrington, Federal Appellate Caseloads and Judgeships (1974) 168 Rosenberg & Carrington, Joint Statement to C.R.F.C.A.S. CHAPTER 8 REVISION OF THE FEDERAL COURT . (1974) 186 STRUCTURE: GOALS AND ALTERNATIVES Leventhal, A Multi-Circuit Court of Appeals (1974) 199 A.C.A.J. Committee, National Court Development (1973) 202 "I I Ii A. POSSIBLE LIMITATIONS ON DISTRICT COURT JURISDICTION . FEDERAL JURISDICTION: A GENERAL VIE~.;r A very different 'luestion is posed when tb~ primary basis for iederal criminal jnrisdiction is the use of.facilities crossing state lines Henry J. Friendly* provided by the federal government or by private enterprises or, for My thesis will be that the that matter, when the defendant has crossed a state line on his own general federal courts can best serve the country if their jurisdiction power, The progenitor appears to have been three provisions in the . is limited to tasks which are appropriate to courts, which are best Post Office act of 1872, making the use of the mails to promote handled by courts of general rather than specialized jurisdiction, and frauds"l: orJolteries,'v. or to disseminate obscenity,'- federal crimes. The where the knowledge, tenure and other qualities of federal jUdges can progeny spawned by this statute is enormous; more than th.ree clos~ly make a distinctive contribution. Presumably there will be little dis­ printed pages of tl~e index to the Criminal Code are r~qUlred to h~t agreement with so general a statt ment; the troubles will come in its the federal offenses that can result from using the mads to transmit application. various tbings, ranging from articles designed for producing abortion • . • While no one disputes the to dangerous weapon:;. The similar development with. respect to .move­ general proposition that enforcement. of federal criminal law is a ment in interstate commerce seems to have begun In 1910 with the proper subject of federal jUrisdiction, and indeed today that the Mann Act':' followed shortly by the National Motor Vd1ic\e Theft fed"'-ral courts should have exclusive jurisdiction over federal prose­ Act of 1919.~ These statutes also have given rise to a population ex­ cutions/ there is much debate whether too many matters have not plosion, often sparked by a calise celebre such as the Lindber~h kid­ been swept into the federal penal .::ode. Therc can be no controversy napping,h. One might have thought the limit was reached In the over what, until t'he Civil War, had been the exclusive SUbject Q( so-caU;d Travel Act of 1961,N. but that \vas not to be so. Congress federal criminal jurisdiction-"acts directly injurious to the central has since enacted statutes which make certain activities criminal on government"\'-revenue frauds, interference \vith or misdeeds by tht: basis. of its determination that they affect interstate commerce, federal officers, counterfeiting United States securities and coins,' even though the acts in the particular case were entirely local, and the espionage and treason. There can be equally little argument about the Supreme Court ha!i sustained this.N. Along with this has come,an )" ! expanded notion of what constitutes interference with ?overnment next step taken beyond this, the Ch'il Rights legislation prescribing ! I criminal sanctions against those who refused to recognize the changes U property; an example is the expansion, of th~ statute agamst robbery i I of a national bank to include aU banKs which are members of the wrought by the Civil War and the three amendments of the Re­ ~ : construction period~ Again, there is no unreasonable expansion of Federal Reserve System ur who:,t; d¢posits are insured by the Fcdcrnl fcdc/'nl criminal jurisdiction when Congress takes over substantive Deposit Insurance Corporatllon, any federal savings and loan asso­ regulation of a field and decides that .::rimlnal as well as civil sanctions ciation, any savings and loan association insured by the. Fed,eral are desirable. [i The antitrust laws and the securities laws are suflicient Savinos and Loan Insurance Corporation, and federal credrt umons examples. and c~rtain other savings institutions. k This means almost all in­ stitutions in any way engaged in banking or tht! handling of sav~n~s. It is thus fair to say that today "[t]here is practically no offense :Vllll1~ the purview of local law that does not become a federal cnme If *Senior Circui t Judge; a t the time of publica tion, Chief Judge of. the United States COurt of Appeals some distinctive federal involvement happens to be present"hi....-and for the Second Circuit. Reproduced from a work of the involvement may be exceedingly thin.
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