The Newsletter of the Institute of Judicial Administration at the NYU School of Law Issue Number 2 / Summer 2005 U From the Chief Justice Ronald George Executive Co-Directors Urges Stronger Institutional We welcome you to the sec- ond issue of our Newsletter. IJA is a community of lead- Independence and Identity ing judges, practitioners, and academics engaged in t’s not every day that you maintaining and enhanc- hear a state supreme court ing our system of justice. justice compared to soul We hope in this and com- legend James Brown. But ing issues to keep you in- I it happened at the Justice formed of the activities of William J. Brennan Jr. Lecture the Institute and urge you on State Courts and Social to alert us to developments Justice at the NYU School of in your professional lives. Law. The Honorable Judith Please be sure to see our S. Kaye, Chief Judge of the calendar on the last page State of New York, introduced of this newsletter for pro- California’s Chief Justice, The gram highlights scheduled Honorable Ronald M. George, for 2005 and 2006. by drawing a parallel between the singer, once described as a Professors Oscar G. Chase “continuous whirl of motion,” and Samuel Estreicher and George, who she said is the “hardest working man in the court business.” In This Issue The 11th Annual Brennan Lecture, co-sponsored by IJA Judge Daughtrey and the Brennan Center for Speaks on Clerking 3 Justice on January 26, 2005, capped off the four-day meet- Workshop on Employment ing of the Conference of Chief Law for Federal Judges 4 Justices in New York. In his New Board Nominees 6 talk, “Challenges Facing an Independent Judiciary,” Chief Summer Fellow Update 7 Justice George argued that “by Since 1972, California’s courts appellate courts. Finding that IJA Community News 8 creating a stronger judicial have been the largest court sys- access to and quality of justice identity, state courts can better tem in the western world, sur- varied vastly, he identified three Board of Directors 9 maintain their independence in passing in size even the federal priorities for the judicial branch: judicial decision-making.” The court system. In 1996, George shifting court funding from the IJA Members 9 audience included more than became Chief Justice of the state, local to the state level; consoli- How to Contact IJA 10 20 judges from state courts of and within two years, he had dating the dual-level trial courts; last resort. visited every one of its trial and and improving court facilities. branch. Many counties, faced with diffi- culties in funding schools and other social The 2006 Brennan Lecture services, had made the maintenance of court facilities a low priority. As a result, The Brennan Lectures are published by the New York University Law Review. The according to George, “Our temples of jus- Twelfth Annual Brennan Lecture will be delivered by The Honorable Randall T. tice include many buildings that would Shepard, Chief Justice of the Supreme Court of Indiana, on February 28, 2006. All be unable to withstand even a moderate IJA members and alumni are invited to attend. earthquake. Courtrooms located in trail- ers, and structures with toxic mold, fall- Previous Brennan Lecturers ing asbestos tiles, and peeling lead paint make the courthouse a dangerous place 1995 Hon. Judith S. Kaye, Chief Judge, Court of Appeals of the State of New York to work or to litigate one’s case.” With the 1996 Hon. Stewart G. Pollock, Associate Justice, Supreme Court of New Jersey 2002 legislation, these facilities are no 1997 Hon. Stanley Mosk, Associate Justice, Supreme Court of California longer a burden on the counties, but have become a state-wide responsibility. 1998 Hon. Ellen Ash Peters, Chief Justice, Supreme Court of Connecticut According to George, these changes, as 1999 Hon. George Bundy Smith, Associate Judge, Court of Appeals of the well as regular meetings with the legisla- State of New York tive and judicial branch and a yearly state 2000 Hon. Shirley S. Abrahamson, Chief Justice, Supreme Court of Wisconsin of the judiciary address to the other two branches of government, will help the ju- 2001 Hon. Christine M. Durham, Associate Justice, Supreme Court of Utah diciary take its place as a co-equal branch 2002 Hon. Thomas R. Phillips, Chief Justice, Supreme Court of Texas of government. With this, the California judiciary will achieve a stronger institu- 2003 Hon. Jeffrey L. Amestoy, Chief Justice, Supreme Court of Vermont tional identity and independence. While 2004 Hon. Margaret H. Marshall, Chief Justice, Supreme Judicial Court these initiatives have not always been of Massachusetts greeted with enthusiasm by every judge, 2005 Hon. Ronald M. George, Chief Justice, Supreme Court of California the outcome has been increased access to the courts, improved services, and over- all better administration of justice. “We work with words and persuasion, not with First, George determined that better Finally, in 2002, the ownership of court the power to appropriate or legislate,” coordination among the courts and be- facilities was transferred from the coun- George concluded. “We shall be measured tween the courts and state agencies was ties to the state government, with the in the end by how well we perform our essential in order to provide the public management overseen by the judicial constitutional function of providing fair with better services, such as additional interpreters to handle the more than 100 languages spoken in California courts. In 1997, the judicial branch convinced the state legislature to shift the respon- sibility of funding state courts from the counties to the state. A mechanism was now in place to ensure continuity and equal access to the courts statewide so that the state Judicial Council can as- sess the needs of local courts and dis- tribute money accordingly. Then, in 1998, the legislature passed a constitutional amendment to unify the municipal and superior courts to create a more effective system. By 2001, the number of trial courts in California fell from 220 to 58. This change allowed for a more efficient use of resources and increased adaptability on the trial court Judge Robert S. Smith (IJA Alum, New York Court of Appeals) and Professor Oscar G. Chase level to the changing needs of the state. (IJA Executive Co-Director) at the 2005 Brennan Lecture. Standing: Chief Judge Judith S. Kaye (New York Court of Appeals, IJA Board Nominee), Chief Justice Ronald M. George (California Supreme Court), Alison Kinney (IJA Program Coordinator), Professor Oscar G. Chase (IJA Executive Co-Director). Seated: Chief Justice Shirley S. Abrahamson (Wisconsin Supreme Court), Professor Samuel Estreicher (IJA Executive Co-Director). and accessible justice and preserving the this appointment, he served as a judge in for the California Department of Justice rule of law.” municipal court, the Los Angeles County from 1965–72. At the California Department Chief Justice George has been Chief Superior Court, and the Court of Appeal. of Justice, he argued six cases before the Justice of California since 1996. Prior to He also served as Deputy Attorney General United States Supreme Court. n Judge Daughtrey Discusses Clerking in the State and Federal Courts The Honorable Martha Craig Daughtrey gave a spirited talk on clerking, followed by a question and answer session, for NYU School of Law students on April 4. Judge Daughtrey, a judge of the U.S. Court of Appeals for the Sixth Circuit, first attended IJA’s Appellate Judges Seminar in 1976 and is the most veteran member of IJA’s judicial teaching faculty. n Judge Daughtrey answering questions from NYU School of Law students. Scheindlin Delivers Talk for Workshop on Employment Law for Federal Judges ccording to the New York Times, The Honorable Shira Scheindlin of the U.S. District Court for the Southern District of New York A“has been called witty, sarcastic, no- nonsense, eminently fair, eminently un- fair, brilliant and antigovernment.” She has decided high-profile cases involving National Football League draft rules and a magazine ad about former New York Mayor Rudolph Giuliani. Her re- cent work on behalf of the federal rule- making process, addressing electronic discovery resulting from newer technol- ogies like email and databases, brought Scheindlin to the two-day Workshop on Employment Law for Federal Judges. The annual workshop, co-sponsored by IJA, the Federal Judicial Center, and the Law School’s Center for Labor and Employment Law, welcomed 50 federal trial and appellate judges from around the country to discuss such topics as case management, wage/hour litigation, evi- dence and experts, mediation, sex and age discrimination, and jury instructions. As the luncheon speaker and part of a panel on electronic discovery, Scheindlin discussed her opinions in Zubulake v. UBS Warburg and several proposed rule changes intended to deal better with electronic information. In Zubulake, Scheindlin explored on how courts should handle the accessibility of different data, which party in a lawsuit should pay for retrieving “inaccessible” data, what to Top: (left to right) Hon. Rosemary Barkett (U.S. Court of Appeals, Cir. 11), Professor Samuel Estreicher do when data is destroyed, and when to (IJA Executive Co-Director), Hon. Shira A. Scheindlin (U.S. District Court, SDNY); Bottom: Panel on apply sanctions. “What are [employers] Evidence Issues/Use of Experts, (left to right) Robert B. Fitzpatrick (Robert B. Fitzpatrick, PLLC), Hon. required to preserve?” asked Scheindlin. Denny Chin (U.S. District Court, SDNY), and Robert S. Whitman (Orrick, Herrington & Sutcliffe) “What is the scope?” These questions will ultimately be determined by case law, but In her address, Scheindlin said the is automatically created and deleted, its she cautioned judges not to issue overly proposed changes to the Federal Rules difficulty to delete, and the importance broad preservation orders.