The concluding volume of the series covers debates concerning structural changes to the federal courts, including the creation of the U.S. magistrate and U.S. bankruptcy judge positions, and alterations to the federal appellate system, including the division of the Fifth Circuit, the creation of the Federal Circuit, and proposals for a national court of appeals. A section on criminal justice reform recounts debates over access to counsel for indigent defendants, detention before trial, habeas corpus, and the creation of the U.S. Sentencing Commission. The volume also covers proposed civil justice initiatives regarding diversity jurisdiction, class actions, case management, alternative dispute resolution, and the creation of the Judicial Panel on Multidistrict Litigation, and concludes with discussions on the discipline of federal judges, including proposals for a nonimpeachment method for judicial removal.
Acknowledgments, xiii
Introduction, 1
New Judicial Positions and the Distribution of Authority, 7
U.S. Magistrates, 9
Judge Theodore Levin, Reducing Reliance on Commissioners, Testimony Before Senate Subcommittee on Improvements in Judicial Machinery of the Committee on the Judiciary, December 15, 1965, 13
Judge Talbot Smith, Support for Enhanced Commissioner Powers, Testimony Before Senate Subcommittee on Improvements in Judicial Machinery of the Committee on the Judiciary, July 13, 1966, 15
George Cochran Doub, Expanding Criminal Jurisdiction of Commissioners, Testimony Before Senate Subcommittee on Improvements in Judicial Machinery of the Committee on the Judiciary, February 8, 1966, 17
Representative William Cahill, Opposition to Delegation of Judicial Power to Magistrates, House of Representatives, Speech of September 18, 1968, 19
Charles R. Halpern, Fear of Coercion of Parties to Submit Cases to Magistrates, Testimony Before Senate Subcommittee on Improvements in Judicial Machinery of the Committee on the Judiciary, June 8, 1977, 22
Dennis Sweeney, Opposition to Designating Magistrates to Decide Civil Cases, Testimony Before Senate Subcommittee on Improvements in Judicial Machinery of the Committee on the Judiciary, June 10, 1977, 24
Burt Neuborne, Uniqueness of Article III Adjudication, Testimony Before House Subcommittee on Courts, Civil Liberties, and the Administration of Justice of the Committee on the Judiciary, July 20, 1977, 26
Judge Charles M. Metzner, Approval of Expansion of Magistrate Duties, Testimony Before Senate Subcommittee on Improvements in Judicial Machinery of the Committee on the Judiciary, March 30, 1979, 29
U.S. Bankruptcy Judges, 30 Brookings Institution, Proposal for an Independent Bankruptcy Administrative Agency, Report of September 1971, 34
Judge Conrad K. Cyr, Opposition to Separation of Judicial and Administrative Aspects of Bankruptcy, Commercial Law Journal, February 1973, 35
Commission on the Bankruptcy Laws of the United States, Need for a Bankruptcy Administrative Agency, Report of July 31, 1973, 37
iv
Debates on the Federal Judiciary: A Documentary History (Vol. III: 1939–2005) Judge Conrad K. Cyr, Disregard for Dollar Value in Determining When Judicial Resolution Is Necessary, American Bankruptcy Law Journal, Spring 1975, 40
Harold Marsh, Conflict of Interest Caused by Bankruptcy Judge Appointment of Trustee, Testimony Before the Senate Subcommittee on Improvements in Judicial Machinery of the Committee on the Judiciary, November 28, 1977, 41 Judge Homer Drake, Opposition to Presidential Appointment of Bankruptcy Judges, Testimony Before Senate Subcommittee on Improvements in Judicial Machinery of the Committee on the Judiciary, February 20, 1975, 43
Judge John T. Copenhaver, Support for Expanded Bankruptcy Jurisdiction, Testimony Before House Subcommittee on Civil and Constitutional Rights of the Committee on the Judiciary, July 10, 1975, 45
Ad Hoc Committee on Bankruptcy Legislation of the Judicial Conference of the United States, Opposition to Expanded Bankruptcy Jurisdiction, Testimony Before the Senate Subcommittee on Improvements in Judicial Machinery of the Committee on the Judiciary, November 28, 1977, 47
Attorney General Griffin B. Bell, Opposition to Creation of Article III Bankruptcy Courts, Testimony Before the Senate Subcommittee on Improvements in Judicial Machinery of the Committee on the Judiciary, November 29, 1977, 48 National Bankruptcy Review Commission, Advocacy for Creation of Article III Bankruptcy Courts, Report of October 20, 1997, 50
Susan Block-Lieb, Advocacy for Article III Status and Expanded Jurisdiction for Bankruptcy Judges, American Bankruptcy Law Journal, Fall 1998, 52
Thomas E. Plank, Lack of Necessity for Article III Bankruptcy Judges, American Bankruptcy Law Journal, Fall 1998,
54 Changes to the Appellate System, 57
Civil Rights and the Division of the Fifth Circuit,
60 Special Committee on the Geographic Organization of the Courts, Recommendation for Dividing Fifth Circuit, March 16, 1964,
63 Charles Alan Wright, Opposition to “Rule of Nine,” Texas Law Review, October 1964,
64 Judge John C. Godbold, Necessity of Dividing Fifth Circuit, Testimony Before Hruska Commission, August 22, 1973,
67 Judge John Minor Wisdom, Large Circuits Necessary for Courts of Appeals to Remain Diverse, Testimony Before Senate Subcommittee on Improvements in Judicial Machinery of the Committee on the Judiciary, September 24, 1974, 69
v
Contents Judge Thomas G. Gee, Lack of Necessity for Splitting Circuits, Testimony Before House Subcommittee on Monopolies and Commercial Law of the Committee on the Judiciary, September 21, 1977, 71
Attorney General Griffin B. Bell, Support for Permitting Mississippi to Remain with Eastern States, Testimony Before House Subcommittee on Monopolies and Commercial Law of the Committee on the Judiciary, September 27, 1977, 73 U. W. Clemon, Importance for Civil Rights of Leaving Fifth Circuit Intact, Testimony Before House Subcommittee on Monopolies and Commercial Law of the Committee on the Judiciary, Oct 19, 1977, 74
Althea T. L. Simmons, Prematurity of Fifth Circuit Split, Testimony Before House Subcommittee on Courts, Civil Liberties, and the Administration of Justice of the Committee on the Judiciary, August 22, 1980, 76
Judge Robert A. Ainsworth, Jr., Appellate Courts Should Be Trusted to Uphold Civil Rights, Testimony Before House Subcommittee on Courts, Civil Liberties, and the Administration of Justice of the Committee on the Judiciary, August 22, 1980, 79 National Court of Appeals, 79
Earl Warren, Opposition to Divesting Supreme Court Justices of Responsibility for Certiorari Review, Bar Association of City of New York, Speech of May 1, 1973, 82
Chief Justice Warren Burger, Heavy Burden on Justices of Reviewing Petitions for Certiorari, American Bar Association Journal, July 1973, 84
Alexander M. Bickel, Necessity for Screening Petitions for Certiorari Outside of the Supreme Court, Pamphlet of November 1973, 86
Judge Shirley M. Hufstedler, Importance of Harmonizing National Law, American Bar Association Journal, May 1974, 88
Robert J. Kutak, Support for Transfer Jurisdiction, Testimony Before Hruska Commission, April 15, 1975, 90 Judge Donald P. Lay, Value of Decentralized Decision Making, Testimony Before Hruska Commission, April 16, 1975, 92 Terrance Sandalow, Concern Regarding Overreliance on Constitutional Interpretation, Testimony Before Hruska Commission, April 15, 1975, 94
American Bar Association Special Committee on Coordination of Judicial Improvements, Support for Reference Jurisdiction, Report of February 1976, 96 U.S. Court of Appeals for the Federal Circuit, 97
Irving Kayton, Concern About Forum Shopping by Patent Bar, Testimony Before Hruska Commission, May 20, 1974, 99 Judge John Paul Stevens, Opposition to Specialized Appellate Courts, Testimony Before Hruska Commission, June 10, 1974, 100 Hruska Commission, Opposition to Creation of Specialized Courts, Report of June 20, 1975, 102 vi Debates on the Federal Judiciary: A Documentary History (Vol. III: 1939–2005) Charles R. Haworth and Daniel J. Meador, Proposal for Federal Circuit, University of Michigan Journal of Law Reform, Winter 1979, 103
Erwin N. Griswold, Support for Creation of U.S. Court of Tax Appeals, Testimony Before Senate Subcommittee on Improvements in Judicial Machinery of the Committee on the Judiciary, May 7, 1979, 105
Albert E. Jenner, Opposition to Centralization of Patent Appeals, Testimony Before Senate Subcommittee on Courts of the Committee on the Judiciary, May 18, 1981, 108
Donald R. Dunner, Support for Centralization of Patent Appeals, Testimony Before Senate Subcommittee on Courts of the Committee on the Judiciary, May 18, 1981, 109
Senate Judiciary Committee, Diverse Docket of New Court, Report of November 18, 1981, 111
Criminal Justice Reform, 113
Counsel for Indigent Defendants in the Federal Courts, 115
Committee to Consider the Adequacy of Existing Provisions for the Protection of the Rights of Indigent Litigants in the Federal Courts, Endorsement of Compensation for Appointed Counsel, Report of September 26, 1944, 117 Representative Emanuel Celler, Support for Federal Public Defenders, Testimony Before House Subcommittee No. 2 of the Committee on the Judiciary, May 14, 1959, 119
Judge E. J. Dimock, Opposition to Federal Public Defenders, Testimony Before House Subcommittee No. 2 of the Committee on the Judiciary, May 6, 1959, 121
Allen Committee, Governmental Obligation to Provide Defense Counsel, Report of February 25, 1963,
124 Senator Sam J. Ervin, Jr., Necessity of Improved Representation for Indigent Defendants, American Bar Association Journal, May 1963,
126 Representative Byron G. Rogers, Opposition to Public Defender System, House of Representatives, Speech of January 15, 1964,
128 Judge A. Sherman Christensen, Value of Uncompensated Representation, American Bar Association Journal, August 1965,
130 Terence F. MacCarthy, Support for District Choice of Defender System, Testimony Before Senate Subcommittee on Constitutional Rights of the Committee on the Judiciary, June 24, 1969, 132
Detention Before Trial and Conviction, 135 Bail Reform Act of 1966, 137
Senator Roman L. Hruska, Unfairness of Bail System, Testimony Before Senate Subcommittees on Constitutional Rights and on Improvements in Judicial Machinery of the Committee on the Judiciary, August 4, 1964, 139
vii
Contents
Charles H. Bowman, Support for Elimination of Bail Bonds, Testimony Before Senate Subcommittees on Constitutional Rights and on Improvements in Judicial Machinery of the Committee on the Judiciary, August 6, 1964, 140
George L. Will, Necessity of Bail Bond System, Testimony Before Senate Subcommittees on Constitutional Rights and on Improvements in Judicial Machinery of the Committee on the Judiciary, August 4, 1964, 141
Jack T. Conway, Excessive Burden of Bail System on the Poor, Testimony Before Senate Subcommittees on Constitutional Rights and on Improvements in Judicial Machinery of the Committee on the Judiciary, June 16, 1965, 144 Preventive Detention, 146 Senator Robert C. Byrd, Support for Preventive Detention, Testimony Before Senate Subcommittee on Constitutional Rights of the Committee on the Judiciary, February 4, 1969, 147
Abraham S. Goldstein, Opposition to Preventive Detention, The New Republic, March 8, 1969, 150
Attorney General John N. Mitchell, Constitutionality of Preventive Detention, Virginia Law Review, November 1969, 151
Patricia M. Wald, Alternatives to Preventive Detention, Testimony Before Senate Subcommittee on Constitutional Rights of the Committee on the Judiciary, January 22, 1969, 153
Laurence H. Tribe, Unfairness and Ineffectiveness of Preventive Detention, Virginia Law Review, April 1970, 156
Judge Charles W. Halleck, Effectiveness of Preventive Detention, Testimony Before Senate Subcommittee on Constitutional Rights of the Committee on the Judiciary, January 22, 1969, 157
Speedy Trial Act of 1974, 160 Representative Abner J. Mikva, Introduction of Pretrial Crime Reduction Act, House of Representatives, Speech of November 17, 1969, 161
Attorney General John N. Mitchell, Opposition to Speedy Trial Legislation, Address to American Bar Association, July 16, 1971,
163 Assistant Attorney General William H. Rehnquist, Criticism of Dismissal Sanction, Testimony Before Senate Subcommittee on Constitutional Rights of the Committee on the Judiciary, September 14, 1971, 165
Senator Sam J. Ervin, Jr., Importance of Congressional Speedy Trial Mandate, Opening Statement to Senate Subcommittee on Constitutional Rights of the Committee on the Judiciary, April 17, 1973, 167
Daniel J. Freed, Support for Speedy Trial Act of 1974, Testimony Before House Subcommittee on Crime of the Committee on the Judiciary, September 18, 1974, 169
viii
Debates on the Federal Judiciary:
A Documentary History (Vol. III: 1939–2005) Bail Reform Act of 1984, 172
Senate Judiciary Committee, Favorable Report on Preventive Detention Bill, August 4, 1983, 172
Habeas Corpus Reform, 175
Paul M. Bator, Importance of Finality in Criminal Proceedings, Harvard Law Review, January 1963, 178
Judge Henry J. Friendly, Dangers of Elevating Procedural Issues to Constitutional Claims, Ernst Freund Lecture at University of Chicago Law School, 1970, 180
Attorney General Richard G. Kleindienst, Support for Limiting Habeas Corpus, Letter to Emanuel Celler, June 21, 1972, 183
Melvin L. Wulf, Importance of Habeas Corpus to Vindication of Constitutional Rights, Brooklyn Law Review, Fall 1973, 184
Alabama Chief Justice C. C. Torbert, Jr., Integrity of State Criminal Justice Systems, Testimony Before Senate Subcommittee on Courts of the Committee on the Judiciary, November 13, 1981, 187
Larry W. Yackle, Necessity of Federal Oversight of State Criminal Justice, Iowa Law Review, May 1983, 190
U.S. Department of Justice, Office of Legal Policy, Advocacy of Abolition of Federal Habeas Corpus Review of State Convictions, Report of May 27, 1988, 193
Sentencing Reform, 195 Judge Marvin E. Frankel, Advocacy for Sentencing Commission, Criminal Sentences: Law Without Order, 1973, 197
Senator Edward M. Kennedy, Proposal for Sentencing Reform, Judicature, December 1976, 200
Pierce O’Donnell, Michael J. Churgin, Dennis E. Curtis, Support for Establishment of a Sentencing Commission, Toward a Just and Effective Sentencing System, June 1977, 202
Judge David L. Bazelon, Value of Judicial Discretion in Sentencing, Speech to Conference on Crime and What We Can Do About It, April 2, 1977, 204
Senator Charles McC. Mathias, Jr., Opposition to Sentencing Reform Bill, U.S. Senate, Speech of January 27, 1984, 206
Senator Charles McC. Mathias, Jr., Proposed Amendments to Sentencing Reform Bill, U.S. Senate, Speech of January 31, 1984, 209
Senator Edward M. Kennedy, Opposition to Proposed Amendments to Sentencing Reform Bill, U.S. Senate, Speech of January 31, 1984, 211
Civil Justice Reform and Access to the Courts, 213 Diversity Jurisdiction, 216 American Law Institute, Support for Curtailing Diversity Jurisdiction, Draft Report of September 25, 1965, 218
ix
Contents
Donald T. Weckstein, Opposition to Curtailment of Diversity Jurisdiction, Testimony Before Senate Subcommittee on Improvements in Judicial Machinery of the Committee on the Judiciary, October 5, 1971, 221
U.S. Department of Justice, Committee on Revision of the Federal Judicial System, Recommendation for Abolition of Diversity Jurisdiction, Report of January 1977, 223
Judge Henry J. Friendly, Prioritization of Federal Question Jurisdiction Over Diversity Jurisdiction, Testimony Before House Subcommittee on Courts, Civil Liberties, and the Administration of Justice of the Committee on the Judiciary, September 29, 1977, 225
Legal Services Attorneys, Elimination of Barriers to Enforcement of Federal Rights, Testimony Before Senate Subcommittee on Improvements in Judicial Machinery of the Committee on the Judiciary, March 20, 1978, 227
Robert G. Begam, Importance of Forum Choice, Testimony Before House Subcommittee on Courts, Civil Liberties, and the Administration of Justice of the Committee on the Judiciary, September 21, 1977, 229
Edward W. Mullinix and John C. Shepherd, Support for Retention of Diversity Jurisdiction, American Bar Association Journal, June 1979, 231
Federal Courts Study Committee, Recommendation for Elimination of Diversity Jurisdiction, Report of April 2, 1990, 233
The Anti-Trial Movement, 236 Case Management and Settlement, 237
Judge William W Schwarzer, Advocacy for Judicial Pretrial Management, Judicature, April 1978, 238
Judith Resnik, Criticism of Managerial Judging, Harvard Law Review, December 1982, 241
Judge Robert F. Peckham, Criticism of Laissez-Faire Judging, Rutgers Law Review, Winter 1985, 243
Owen M. Fiss, Centrality to Court’s Purpose of Making Judgments, Yale Law Journal, May 1984, 245 Judge Jack B. Weinstein, Dangers of Restricting Access to the Courts, University of Pennsylvania Law Review, June 1989, 247 Alternative Dispute Resolution, 251 Judge Edwin A. Robson, Benefits of Arbitration, Address to Chicago Advisory Council of American Arbitration Association, December 6, 1974, 252 Committee on Federal Courts of the Association of the Bar of the City of New York, Testimony Before Senate Subcommittee on Improvements in Judicial Machinery of the Committee on the Judiciary, April 14, 1978, 254
x
Debates on the Federal Judiciary:
A Documentary History (Vol. III: 1939–2005) U.S. Department of Justice, Ad Hoc Panel on Dispute Resolution and Public Policy, Support for Alternative Dispute Resolution, Report of January 1984, 256
Federal Courts Study Committee, Subcommittee on the Role of the Federal Courts and Their Relationship to the States, Additional Costs Imposed by Alternative Dispute Resolution, Report of July 1, 1990, 258
Judge G. Thomas Eisele, Opposition to Mandatory Arbitration, Letter to Judicial Conference of the United States, March 8, 1993, 260
Class-Action Reform, 262
Abraham L. Pomerantz, Usefulness of Class-Action Remedy, The Business Lawyer, April 1970, 264
Milton Handler, Managerial Burden of Class Actions, Address to Association of the Bar of the City of New York, October 13, 1970, 265
William Simon, Misuse of Class Actions by Attorneys, Speech to Ninth Circuit Judicial Conference, Pasadena, California, July 27, 1972, 268
Francis R. Kirkham, Quasi-Legislative Function of Class Actions, Addendum to 1976 Speech to Pound Conference, 1979, 270
Vice President Walter F. Mondale, Necessity of Class Actions for Protection of Ordinary Citizens, Speech to Second Judicial Circuit Conference, Buck Hill Falls, Pennsylvania, September 10, 1977, 271
Assistant Attorney General Daniel J. Meador, Support for Public Actions Brought by Department of Justice, Testimony Before Senate Subcommittee on Judicial Machinery of the Committee on the Judiciary, November 29, 1978, 273 Bruce Meyerson, Opposition to Public Action, Testimony Before Senate Subcommittee on Judicial Machinery of the Committee on the Judiciary, November 29, 1978, 276
J. Fred Byset and M. Kendall Fleeharty, Excessively Punitive Nature of Public Action, Testimony Before Senate Subcommittee on Judicial Machinery of the Committee on the Judiciary, November 29, 1978, 278
Arthur R. Miller, Opposition to Changes to Class-Action Rules, Harvard Law Review, January 1979, 280
Representative Bob Goodlatte, Need for Expansion of Federal Jurisdiction Over Class Actions, Testimony Before House Committee on the Judiciary, May 15, 2003, 283
Brian Wolfman, Opposition to Effectively Eliminating State Court Jurisdiction Over Class Actions, Testimony Before House Committee on the Judiciary, May 15, 2003, 285
Judicial Panel on Multidistrict Litigation, 287
Henry W. Sawyer III, Opposition to Judicial Panel on Multidistrict Litigation, Speech to Third Circuit Judicial Conference, September 10, 1965, 289
xi
Contents
Judge Alfred P. Murrah, Need for Centralized Control over Multiple Litigation, Testimony Before Senate Subcommittee on Improvements in Judicial Machinery of the Committee of the Judiciary, October 21, 1966, 290
Judge Edwin A. Robson, Support for Judicial Panel on Multidistrict Litigation, Testimony Before Senate Subcommittee on Improvements in Judicial Machinery of the Committee on the Judiciary, October 20, 1966, 292
Philip Price, Burden on Litigants of Transfer of Multidistrict Cases, Letter to Senator Hugh Scott, October 20, 1966, 294
American Bar Association Section on Antitrust Law, Disapproval of Judicial Panel on Multidistrict Litigation, Testimony Before Senate Subcommittee on Improvements in Judicial Machinery of the Committee on the Judiciary, January 24, 1967, 296
Judicial Discipline and Removal, 299
Senator Joseph D. Tydings, Need for an Alternative to Impeachment, Opening Statement to Senate Subcommittee on Improvements in Judicial Machinery of the Committee on the Judiciary, February 15, 1966, 302
Senator Joseph D. Tydings and Judge John Biggs, Jr., Need for a National Commission on Judicial Disability and Tenure, Exchange Before Senate Subcommittee on Improvements in Judicial Machinery of the Committee on the Judiciary, April 23, 1968, 304
Judge Clement F. Haynsworth, Jr., Support for a National Commission for the Removal of Unfit Judges, Testimony Before Senate Subcommittee on Improvements in Judicial Machinery of the Committee on the Judiciary, June 2, 1969, 308
Judge Stephen S. Chandler, Exclusive Authority of Congress to Supervise Judges, Reply Brief in Chandler v. Judicial Council of the Tenth Circuit, Supreme Court of the United States, October Term 1969, 309
Justice William O. Douglas, Independence of Judges from Each Other, Dissenting Opinion in Chandler v. Judicial Council of the Tenth Circuit, Supreme Court of the United States, June 1, 1970, 312
Judge Frank J. Battisti, Opposition to Vesting Judiciary with Power to Remove Judges, Address at Boston College Law School, November 18, 1971, 313
Senator Sam Nunn, Public Confidence in the Judiciary, U.S. Senate, Speech of April 29, 1977, 316
Judge J. Clifford Wallace, Opposition to the Nunn Bill, Judicature, May 1978, 318
Judge J. Edward Lumbard, Support for the Nunn Bill, Judicature, May 1978, 320
xii
Debates on the Federal Judiciary:
A Documentary History (Vol. III: 1939–2005) Judge Irving R. Kaufman, Threat to Judicial Independence of a Commission on Judicial Conduct, Benjamin Cardozo Lecture to the Association of the Bar of the City of New York, November 1, 1978, 322 Raoul Berger, Appropriateness of Judicial Removal Power Within Judicial Branch, Cornell Law Review, June 1979, 323
National Commission on Judicial Discipline and Removal, Effectiveness of Judicial Conduct and Discipline Act of 1980, Report of August 2, 1993, 326
For Further Reference, 329 Index, 33
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