itUh§ econd @ircuit A Collection of History Lectures delivered by Judges of the Second Circuit Published by the Federal Bar Council Foundation 1992 69 Vnited cltates @ourts itttht cSecond Gircuit Copyright© 1992 by the Federal Bar Foundation The material in this volume may be quoted without permission with appropriate source credit and citation. The citation should identify the author, title and date of the particular lecture, followed by the words: "published in United States Courts in the Second Circuit, Federal Bar Foundation, 1992." Additional copies of this volume (while the supply lasts) may be purchased from: Federal Bar Foundation 145 East 49th Street New York, New York 10017 (212) 644-9771 Contents Page Introduction Whitney North Seymour, Jr. United States District Court for tlze Southern District of New York Hon. Edward Weinfeld (1981) 1 United States District Court for the Eastern District of New York Hon. Eugene A. Nickerson (1982) 24 United States District Court for the District of Connecticut Hon. Jose A. Cabranes (1983) 38 United States District Court for the Nortlzem District of New York Hon. Roger J. Miner (1984) 62 United States District Court for tlze District of Vermont Hon. Albert W Coffrin (1985) 109 United States District Court for the Western District of New York Hon. John T. Curtin (1986) 124 United States Court of Appeals for the Second Circuit Hon. Roger]. Miner (1991) 138 Contents Page Introduction Whitney North Seymour, Jr. United States District Court for the Southern District of New York Hon. Edward Weinfeld (1981) 1 United States District Court for the Eastern District of New York Hon. Eugene A. Nickerson (1982) 24 United States District Court for the District of Connecticut Hon. Jose A. Cabranes (1983) 38 United States District Court for the Northern District of New York Hon. Roger J. Miner (1984) 62 United States District Court for the District of Vermont Hon. Albert W Coffrin (1985) 109 United States District Court for the Western District of New York Hon. John I Curtin (1986) 124 United States Court of Appeals for the Second Circuit Hon. Roger J. Miner (1991) 138 Second Circuit History Lectures United States Court of Appeals for the Second Circuit One Hundred Years of Influence on National Jurisprudence: Second Circuit Court of Appeals Decisions Reviewed by the United States Supreme Court Hon. Roger J. Miner Circuit Judge October 28, 1991 1891 was a year of notable events in New York City. Carnegie Hall, built with a gift from steel magnate Andrew Carnegie, began its existence with a concert conducted by Tchaikovsky. Dean Theodore Dwight and several profes­ sors resigned their positions at Columbia Law School in a dispute over teaching methods and founded New York Law School, my alma mater. The beautiful New York Botanical Gardens opened in the Bronx. Oscar Wilde's play, "The Duchess of Padua" had its premiere at the Broadway Theater. American Express issued its first Travelers Cheques. George Batten established the first full service advertis­ ing agency, later to be known as Batten, Barton, Durstine & Osborn, and we have been battered and bothered by pervasive advertising ever since. The notable New York Event of 1891 that we celebrate today is the es­ tablishment of the United States Court of Appeals for the Second Circuit, then known as the United States Circuit Court of A~peals for the Second Circuit. The Court was created by the Act of March 3, 1891, popularly known as the Evarts Act after its principal sponsor, Senator William M. Evarts of New York. A distin- 138 Court of Appeals for the Second Circuit guished lawyer, William Evarts served from 1870 to 1879 as the first President of the Association of the Bar of the City of New York.2 The Evarts Act was passed by Congress in response to the enormous caseloads facing the federal courts in general and the Supreme Court in particular.3 At the time of its passage, more than 42,000 cases were pending in the federal courts of the nation, approximately 22,000 in the courts within the Second Circuit alone.4 Legislation enacted in 1875 conferring general federal question jurisdiction upon the federal courts and ex­ panding diversity jurisdiction5 contributed in great measure to this volume. The old Circuit Courts, which had exercised both trial and appellate jurisdiction since the creation of the federal courts in 1789, had no judges of their own until1869, originally being composed of a District Court Judge and two Supreme Court Justices "riding circuit."6 In 1869, Congress created a Circuit Judgeship for each of the nine judicial circuits into which the nation then was divided and provided that the Circuit Court could be held by the Circuit Justice, Circuit Judge or District Judge, either alone or in combination? However, the Jus­ tices found it difficult to sit in the Circuits even once every two years as required, the Circuit Judges could not keep up with their case loads and, by the late 1880s, District Judges sitting alone disposed of most of the Circuit Court litigation.8 Despite the addition of another Circuit Court Judgeship in 1887,9 the courts of the Second Circuit were awash in cases at the time of the adoption of the Evarts Act. The Evarts Act established Courts of Appeals within each of the nine ex­ isting circuits, and a joint resolution of Congress required that each of the new Courts hold its first meeting on the third Tuesday in June, 1891.10 Accordingly, the United States Circuit Court of Appeals for the Second Circuit convened for the first time on June 16, 1891 at the United States Post Office Building and Court­ house, Park Row and Broadway, New York City. Present at the first session were Associate Justice Samuel Blatchford of the Supreme Court and Circuit Judges Wil­ liam J. Wallace and E. Henry Lacombe. 11 Although the other circuits were authorized only twojudges, the Second Circuit was authorized three in the originallegislation.1 Judges Wallace and Lacombe came over from the old Cir~ cuit Court, and Nathaniel Shipman of Connecticut would join the new Court in March of 1892 as its third judge and the first appointed under the Evarts Act. 13 At its initial session on June 16, the new Court appointed a Clerk, a Marshal and a Crier, adopted Rules of Court including a rule that limited oral argument to two hours ~er side, and adjourned until October 27, 1891, the last Tuesday in Oc­ tober.1 The June 17, 1891 edition of the New York Times (Price Two Cents; Sun­ day Edition Five Cents) carried a story of the Court's organizational meeting under the headline, "The New Court of Appeals; It Organized Yesterday and Ad­ journed for the Summer."15 According to the Times, "Justice Blatchford opened 139 Second Circuit History Lectures the proceedings by reading the act under which the new court was established by Congress, and spoke of what its duties and business would be." 16 It also was reported that"[o]n behalf of the bar Joseph H. Choate made a short address con­ cerning the necessity of the new Court of Appeals." 17 Carefully noted by the author of the dispatch was the following: "Judge Wallace sat at the right of the Supreme Court Justice, and Judge Lacombe on the left. All wore black silk robes like those worn in the Supreme Court at Washington."18 I pause here to take note of an advertisement that appeared in the New York Times in the column next to the one describing the opening session of the Court. The advertisement included the following testimonial by one George R Jackson of Roxbury, Connecticut: "My appetite was poor, I could not sleep, had headache a great deal, pains in my back, my bowels did not move regularly. Hood's Sarsaparilla in a short time did me so much good that I feel like a new man. My pains and aches are relieved, my appetite improved."19 I wonder if George Batten had anything to do with that ad! By the way, Hood's Sarsaparilla 20 was available at any druggist, "100 Doses One Dollar." When the Court convened for business on October 27, 1891, precisely one hundred years ago yesterday, Judges Wallace and Lacombe constituted the bench. I spoke about Judge Wallace at some length in my 1984 lecture, "The United States District Court for the Northern District of New York- Its History and Antecedents."21 For today, it suffices to say that Judge Wallace served as Mayor of Syracuse and Judge of the Northern District before becoming a Judge of the old Circuit Court in 1882. He served as the first Senior Circuit Judge of the Court of Appeals, the position now designated as Chief Judge, from the formation 22 of the Court in 1891 until his resignation in 1907. Following my lecture in 1984, the beloved Dan Fusaro, who served as Clerk of our Court for so many years, sent me a copy of a letter written by Judge Wallace to the Treasury Department. The date of the letter is not given, but we do know that a copy was forwarded by Learned Hand to an attorney named George Martin in 1934 with this bit of Hand doggerel verse: "Dear George. This is the letter. Here's the very note, this is what he wrote! L.H." 23 What Judge Wallace wrote was a protest against the disallowance of reimbursement for "water closet paper" purchased at his request by the Marshal. In the letter, the Judge seemingly agonized over the question of whether toilet paper should be considered an item required for official use.