Issue Number 7 Winter 2007-08 Trading Courtrooms for IJA Classrooms n July 8-13 the Institute welcomed forty-six new judges, the largest class yet, to the New Appellate Judges Seminar, a program for O state and federal judges with up to four years of experience on the appellate bench. Since the Seminar was first held in 1956, it has offered new appellate judges the op- portunity to explore current issues of sub- stantive law and the challenges unique to the appellate courts. Each year Professors Oscar G. Chase and Samuel Estreicher, IJA Executive Co-Directors, lead a resi- dent faculty composed of academics and experienced jurists, most of whom Deciding moot court case Hall St. Associates v. Mattel: Chief Justice Chase T. Rogers (Connecticut are themselves alumni of the Seminar Supreme Court), Judge Cynthia Westcott Rice (Ohio Court of Appeals), Judge Margaret A. Ryan and members or Board members of the (U.S. Court of Appeals for the Armed Forces), and Judges Neil Gorsuch and Jerome A. Holmes (U.S. Court of Appeals for the Tenth Circuit) Institute. The Seminar is held in conjunc- tion with the Federal Judicial Center’s Louisiana, Maine, Nevada, Ohio, South Court of Criminal Appeals; the U.S. Court orientation for new federal judges and Carolina, Tennessee, Texas, Virginia, and of Appeals for the Armed Forces; and the in recent years has been conducted with Washington; the newly formed Supreme Nova Scotia Court of Appeal and Court of the generous support of West Group and Court of the Virgin Islands; the Court of Appeal for Saskatchewan, Canada. Cravath, Swaine & Moore. Appeals of the Commonwealth of Puerto At the opening dinner, newly appointed This year judges came from the ap- Rico; the Cherokee Supreme Court, New York University Professor Arthur pellate courts of Arkansas, California, Eastern Band of Cherokee Indians; the R. Miller delivered the keynote address Colorado, Connecticut, the District of U.S. Courts of Appeals for the Ninth and on the topic of judicial independence. Columbia, Florida, Hawaii, Iowa, Kentucky, Tenth Circuits; the Navy-Marine Corps He described past political assaults by In This Issue Chinese Judges Program 6 Summer Fellows 14 Judicial Independence 9 Board of Directors 16 Employment Law Workshop 3 Hon. Albert Rosenblatt 5 2007-08 Calendar 9 Members 16 Membership Meeting 5 Community News 10 Contact IJA 18 Brennan Lecture 7 Special Tribute 12 Membership Form 19 Professor Arthur R. Miller Congress and the White House, includ- ing the House of Representatives; the 1804 impeachment of Justice Samuel Chase, a Federalist, after his decision to hang John Fries for treason angered Jeffersonian Republicans; and Franklin Roosevelt’s Judiciary Reorganization Bill of 1937, which sought to pack the Court with politically allied justices. “It’s very easy for you to become paranoid about your independence,” he said. “And just because you’re paranoid doesn’t mean they’re not chasing you.” To date, however, the judicial branch has prevailed; Professor Miller cited the unanimous Supreme Court ruling in U.S. v. Nixon, which put limits on Top: Oral Argument: Sheila L. Birnbaum and J. Russell Jackson; Above: Seminar faculty Judge executive privilege, as evidence of the Diarmuid O’Scannlain (U.S. Court of Appeals for the Ninth Circuit), Judge Harriet Lansing judiciary’s fortitude. Professor Miller (Minnesota Court of Appeals), Chief Justice Randall T. Shepard (Indiana Supreme Court), Judge Rosemary Barkett (U.S. Court of Appeals for the Eleventh Circuit), Justice Bea Ann Smith nonetheless urged vigilance: execu- (Third District Court of Appeals of Texas, retired), and Chief Justice Shirley S. Abrahamson tive reaching in the War on Terror, as (Wisconsin Supreme Court) well as irresponsible media portrayals of judicial rulings as activist or anti- the Complex Mass Tort and Insurance for the Ninth Circuit), and Justice Bea family, threaten judicial independence. Group at Skadden, Arps, Slate, Meagher Ann Smith (retired, Court of Appeals According to Professor Miller, judges & Flom LLP, argue Hall St. Associates v. of Texas for the Third District). must be more visible and educate the Mattel with Skadden partner J. Russell After the oral argument and decision- public on their essential role as an Jackson. Following the argument the making, Dr. Isaiah M. Zimmerman of independent authority on the rule of student judges divided into panels to the Washington School of Psychiatry, law. “You judges with independence discuss and decide the case. The fac- a noted speaker on judicial collegial- properly employed represent the thin ulty bench then went through the same ity and group dynamics, led a discus- black robe that separates our civiliza- process in front of the entire group. sion on appellate decision-making tion from the jungle.” The panel of judges, presided by Judge processes as seen from the perspec- Every year the sessions on judicial Martha Craig Daughtrey (U.S. Court tive of group psychology. Discussion decision-making begin with a case of Appeals for the Sixth Circuit), in- participants included Judge Rosemary from the U.S. Supreme Court’s up- cluded IJA Board member Chief Justice Barkett (U.S. Court of Appeals for coming docket, which is argued in a Shirley S. Abrahamson (Supreme the Eleventh Circuit), Judge Harriet moot court by two members of a firm Court of Wisconsin), Justice Roderick Lansing (Minnesota Court of Appeals), represented on the IJA Board. This L. Ireland (Supreme Judicial Court Chief Justice Randall T. Shepard year, we were delighted to hear Board of Massachusetts), Judge Diarmuid (Supreme Court of Indiana), and member Sheila L. Birnbaum, head of O’Scannlain (U.S. Court of Appeals IJA Board Member Judge John M. Walker Jr. (senior judge and former Chief Judge, U.S. Court of Appeals for the Second Circuit). Other substantive sessions included Frontiers in Legal Research, by Judge Barkett, Stacy Slattery Richards (West Group), and NYU Law Librarians Gretchen Feltes and Annmarie Zell; Criminal Law with Judge John Gleeson (U.S. District Court for the Eastern District of New York) and NYU Law Professor Rachel Barkow; and the Craft of Judging, with the whole judicial faculty. Professor Timothy Terrell (Emory University School of Law) taught three engaging and popular sessions on Employment Law Workshop participants Opinion Writing, ending with a dialogue with Judge Daughtrey and Justice Smith. Judge Lansing, Chief Justice Shepard, and Professor Bruce A. Green (Fordham Federal Judges on Law School) presented and discussed several provocative hypos for Issues in Judicial Ethics. Judge O’Scannlain, Board member Judge Robert A. Katzmann the Cutting Edge of (U.S. Court of Appeals for the Second Circuit), and Professor William Eskridge (Yale Law School) engaged in a lively discussion of Statutory Interpretation. Employment Law Building on the keynote address, Chief Justice Abrahamson, Professor Chase, he tenth annual Workshop on Hon. Bernice B. Donald, a district Justice Ireland, Judge Walker, and Employment Law for Federal court judge for the Western District Deborah Goldberg (Director of the Judges took place on March 12- of Tennessee, Joseph D. Garrison of Democracy Program, Brennan Center 13, 2007. Sponsored jointly by Garrison, Levin-Epstein, Chimes & for Justice) discussed pressing issues in T the Institute, NYU’s Center for Labor Richardson, and Kathleen McKenna of judicial independence. and Employment Law, and the Federal Proskauer Rose opened the Workshop This year the Institute was pleased Judicial Center, this program provides with their discussion of case man- to invite NYU School of Law Professor the opportunity for federal judges to ex- agement issues, in particular pro se Norman Dorsen to give a lunch talk amine the labor and employment issues cases, summary judgment and technol- on U.S. Supreme Court Justices he that increasingly dominate their dockets. ogy. Acting as the panel’s moderator, has known. At a subsequent luncheon Since the program’s inception in Garrison offered his thoughts on case Professor Chase presented some of his 1998, the Workshop has aimed to bring management techniques and suggested original research on comparative deci- together experienced judges with prac- models of interrogation, requests for sion-making practices from his book, Law, titioners and academics to frame the production and protective orders. Culture, and Ritual: Disputing Systems in discussion around federal judges’ needs, The second panel, which included Cross-Cultural Context (see the article and to provide guidance and time for re- Hon. John G. Koeltl of the U.S. District on the book in IJA Report Issue 4, avail- framing issues, theories, and perceptions Court for the Southern District of able on the IJA Web site). Near the end about employment law cases. Forty-five New York, Anne L. Clark of Vladeck, of the Seminar the attendees and faculty federal judges from around the country Waldman, Elias & Engelhard, and attended a festive, relaxing dinner at the convened to discuss case management, Kenneth A. Margolis of Kauff, McClain & waterfront Water Club Restaurant. evidence issues, use of experts, elec- McGuire, discussed evidence issues and We look forward to welcoming the tronic discovery, labor law and ERISA the use of experts. The panel focused on attendees of next year’s New Appellate preemption, court-based/-annexed me- stray remarks, comparators, statistics, Judges Seminar on July 13-18, 2008. n diation of employment disputes, class direct evidence, prior bad acts, Rule 412, and collective actions, sex and racial dis- the use of mental health experts, econo- Reporting provided by the Law Magazine. crimination and jury instruction. mists and CPA’s on damages, “social Left: Electronic Discovery: Judge Denise L. Cote (U.S. District Court, S.D.N.Y.), Pearl Zuchlewski (Kraus & Zuchlewski), and Theodore O. Rogers Jr. (Sullivan & Cromwell); Right: Class and Collective Actions: Mark Dichter (Morgan Lewis & Bockius), Darnley Stewart (Bernstein Litowitz Berger & Grossman), and Judge Denny Chin (U.S.