Courts Commons^™

Re-Evaluating Federal Civil Justice Reform In Montana,, Carl W. Tobias

Law Faculty Publications

Part I of this piece initially affords an update of relevant developments relating to civil justice reform nationally and in the Montana Federal District Court. It emphasizes the congressional decision to extend the deadlines governing analysis of experimentation in the pilot districts and recent developments that led the Montana district to delay the preparation of a written annual assessment. Part II of this paper then glances into the future.

A Salute To Judge William W. Schwarzer, Carl W. Tobias

Law Faculty Publications

Tribute to Senior United States District Judge William W. Schwarzer upon his retirement as Director of the Federal Judicial Center

The Judicial Amendments Act Of 1994, Carl W. Tobias, Margaret L. Sanner

Law Faculty Publications

This 1995 essay briefly examines the Judicial Amendments Act of 1994 in an attempt to familiarize federal court judges, lawyers and parties, as well as other individuals and entities that may be interested in the operations of the courts, with the enactment.

Stuck Inside The Heartland With Those Coastline Clerking Blues Again, Carl W. Tobias

Law Faculty Publications

Supreme Court Justice Stephen Breyer, Circuit Judge Edward Becker, and Circuit Judge Guido Calabresi deserve kudos for helping to craft, implement, and publicize an efficacious solution to the increasing difficulties engendered by the selection of federal judicial law clerks. The jurists' essay, The Federal Judicial Law Clerk Hiring Problem and the Modest March 1 Solution, which recently appeared in the Yale Law Journal, is a must read for all those who participate in the process of law clerk hiring.

The concerted efforts of Justice Breyer and Judges Becker and Calabresi have apparently succeeded in bringing considerable order out of chaos, …

The Impoverished Idea Of Circuit-Splitting, Carl W. Tobias

Law Faculty Publications

Senators representing every state in the latest iteration of the projected Twelfth Circuit recently revived the idea by introducing Senate Bill 956, a proposal that closely resembles a measure debated by Congress in 1990. The new bill's sponsors contend that certain factors, principally the Ninth Circuit's substantial size and burgeoning docket, have now made division of the court imperative.

This Article initially describes the origins and development of the proposed legislation. It then assesses the measure and arguments for and against dividing the Ninth Circuit. I find that there is no greater need for bifurcation now than before and that …

Increasing Balance On The Federal Bench, Carl W. Tobias

Law Faculty Publications

In President Bill Clinton's first year of service, he nominated unprecedented numbers and percentages of highly qualified women and minorities to the federal judiciary. The Clinton Administration correspondingly employed an effective process for choosing potential jurists that generated relatively little controversy.

Some wondered whether President Clinton could improve his first year judicial selection record during his second year in office, especially given the number of international conflicts and pressing domestic matters that faced the Administration. These complications threatened to deflect the Administration's attention from naming judges.

Now that the 103d Congress has adjourned and President Clinton has reached mid-term, the …

Lesnick V. Hollingsworth & Vose Co. - The Pure Stream Of Commerce No Longer Flows Through The Fourth Circuit, Lori Elizabeth Jones

University of Richmond Law Review

Personal jurisdiction over nonresidents in a forum state has been problematic in our federal system for quite some time. Today, in order to establish personal jurisdiction over a nonresident defendant, the nonresident must have minimum contacts with the forum state. While the test may be stated succinctly, determining whether a person or corporation has minimum contacts with the forum state is an extremely complex process, as seen in the line of personal jurisdiction cases following International Shoe Co. v. Washington.

The Inconsistency Of Virginia's Execution Of The Npdes Permit Program: The Foreclosure Of Citizen Attorneys General From State And Federal Courts, D. Brennen Keene

University of Richmond Law Review

The above mentioned goals and policies of the Clean Water Act suggest that Congress intended to create a partnership between the federal government, state governments, and the public to help abate pollution of the nation's waters. This intent is illustrated by the fact that permits issued to dischargers of pollutants into navigable waters can be issued by either the Environmental Protection Agency (EPA) or a state agency. Unfortunately, the goal of public involvement is lost in "the confusion caused by this poorly drafted and astonishingly imprecise statute." The resulting inconsistent system forecloses some members of the public from participating in …

Extending The Civil Justice Reform Act Of 1990, Carl W. Tobias

Law Faculty Publications

The passage of the Judicial Amendments act of 1994 postponed several key implementation deadlines prescribed by the Civil Justice Reform Act (CJRA) of 1990. Perhaps most significantly, the new legislation extends for one year the mid-1995 date when the RAND Corporation, which is studying ten pilot districts' experimentation with cost and delay reduction procedures, must submit its conclusions to the Judicial Conference of the United States. Numerous compelling arguments supported congressional postponement of this deadline. Most importantly, the RAND Corporation can now capture much additional data, which are critical to assessing accurately the procedures' effectiveness in decreasing expense and delay, …

Common Sense And Other Legal Reforms, Carl W. Tobias

Law Faculty Publications

Enactment of Congress' proposed Common Sense Legal Reforms Act (CSLRA) would impose procedural and substantive reforms that could significantly affect much federal civil litigation and could have substantial systemic impacts on the civil justice process. For instance, the measure's advocates drafted and introduced the proposed legislation with little apparent appreciation for how it might conflict with a number of ongoing public and private reform initiatives, such as an earlier Congress's Civil Justice Reform Act of 1990 and the American Law Institute's efforts to adopt a Third Restatement of Torts governing products liability.

The bill's enactment, therefore, could additionally complicate the …

Perceptual Prisms And Racial Realism: The Good News About A Bad Situation, Jonathan K. Stubbs

Law Faculty Publications

A moment of critical reflection seems appropriate. We are nearly half way through the last decade of the last century of this millennium. The Cold War has abated (at least temporarily) and the United States remains a world leader in human rights protections. Eastern European countries and the former Soviet Republics are taking fledgling steps toward creating stable democratic institutions. Nevertheless, widespread challenges face the world community--civil wars in numerous countries, nµclear proliferation, and the AIDS epidemic . . . .

Agency Action, Finality And Geographical Nexus: Judicial Review Of Agency Compliance With Nepa's Programmatic Environmental Impact Statement Requirement After Lujan V. National Wildlife Federation, Matthew C. Porterfield

University of Richmond Law Review

In recent years, there has been an increasing recognition of the need to address the complex and interrelated impacts that result from human interaction with the environment. One of the most effective tools for evaluating these impacts has been the preparation of programmatic environmental impact statements (EISs) pursuant to the National Environmental Policy Act of 1969 (NEPA). The status of programmatic EISs, however, has been called into question by the Supreme Court's decision in Lujan v. National Wildlife Federation, which has been interpreted by numerous commentators as heralding the end of "programmatic" environmental lawsuits. Even more significantly, Lujan has been …

A Typology Of Transjudicial Communication, Anne-Marie Slaughter

University of Richmond Law Review

Courts are talking to one another all over the world. Mary Ann Glendon describes a "brisk international traffic in ideas about rights," conducted by judges. "In Europe generally," she adds, "and in Australia, Canada, and New Zealand, national law is increasingly caught up in a process of cross-fertilization among legal systems."

Dear Judge Mikva, Carl W. Tobias

Law Faculty Publications

I am writing to urge that you apply in the executive branch the considerable expertise which you attained and honed over a lifetime of service in the legislative and judicial branches of our tripartite system of government, to the critical task of federal judicial selection that uniquely partakes of those coordinate branches.

Improving The 1988 And 1990 Judicial Improvements Acts, Carl W. Tobias

Law Faculty Publications

In this article, Professor Tobias analyzes and attempts to harmonize the conflicting frameworks for civil procedure reform embodied in the Civil Justice Reform Act of 1990 (CJRA) and its immediate predecessor, the Judicial Improvements and Access to Justice Act of 1988 (JIA). Congress intended the JIA to open the national and local rulemaking processes to public scrutiny and to decrease the use of local rules. Yet Professor Tobias finds the 1990 Act at odds with the earlier measure in several ways. By encouraging local experiments aimed at reducing litigation costs and delay, he argues, the CJRA shifted the locus of …

The Tribunal In Albania, John Paul Jones

Law Faculty Publications

Professor Jones explains and critiques "The Organization of Justice and the Constitutional Court," the1992 amendments to Albania's provisional constitution that established the nation's post-revolution judicial system.

The Gender Gap On The Montana State Bench, Carl W. Tobias

Law Faculty Publications

Governor Racicot should expeditiously and forcefully act to remedy the gender gap on the state courts for many reasons. First, there is a significant, highly qualified, pool of female attorneys in Montana who could render excellent judicial service. Numerous women have participated in the types of rigorous legal practices which would prepare them well for the bench. These female lawyers are intelligent, industrious, and independent, while they have exhibited the kind of impeccable integrity and appropriately measured judicial temperament to be fine judges. Some of the attorneys have engaged in challenging public law practices, others have been involved in rigorous …

President Clinton's Covenant And The Federal Courts, Carl W. Tobias

Law Faculty Publications

President Bill Clinton has eloquently invoked the concept of a new covenant with the American people. Claiming that the populace elected him with a mandate for change, the President has appointed individuals to high-level positions, particularly in the Cabinet, who have made the new government look like America. In no branch of the federal government are these ideas more apposite than the Third Branch.

Civil Justice Reform In The Fourth Circuit, Carl W. Tobias

Law Faculty Publications

Congress passed the Civil Justice Reform Act of 1990 (CJRA) because it was increasingly concerned about litigation and discovery abuse in federal civil cases, growing cost and delay in such suits, and decreasing access to federal courts. The statute requires that all ninety-four federal district courts develop civil justice expense and delay reduction plans by December 1993. Thirty-four districts issued plans by December 1991, and the Judicial Conference of the United States recently designated these districts as Early Implementation District Courts (EIDC).

Three of those EIDCs, the Eastern District of Virginia, the Northern District of West Virginia, and the Southern …

Recalibrating The Civil Justice Reform Act, Carl W. Tobias

Law Faculty Publications

In 1990, Congress enacted the Civil Justice Reform Act ("CJRA"), a measure which could substantially change the nature of federal civil litigation. One aspect of the CJRA that provides evidence respecting the progress of civil justice reform is the civil justice expense and delay reduction plans issued in late 1991 by the thirty-four federal district courts which the Judicial Conference of the United States designated as Early Implementation District Courts ("EIDCs").

Congress is currently attempting to assess the reforms included in these plans, which constitute the initial significant step in implementing the CJRA. By some oversight, Congress has not invited …

Civil Justice Reform In The Western District Of Missouri, Carl W. Tobias

Law Faculty Publications

Congress passed the Civil Justice Reform Act (CJRA) of 1990 out of growing concern about litigation abuse in federal civil lawsuits, increasing cost and delay in those cases, and declining federal court access. The legislation commands every federal district court to promulgate a civil justice expense and delay reduction plan by December 1993. The statute also creates a demonstration program and designates the Northern District of California, the Northern District of West Virginia, and the Western District of Missouri as courts that are to "experiment with various methods of reducing cost and delay in civil litigation, including alternative dispute resolution. …

Silver Linings In Federal Civil Justice Reform, Carl W. Tobias

Law Faculty Publications

Many observers, including most of the participants in the civil litigation symposium, have levelled considerable criticism at the Civil Justice Reform Act of 1990 ("CJRA" or "Act") and its implementation. This criticism--which encompasses numerous phenomena, as abstract as constitutional theory and as pragmatic as numerical limitations on interrogatories--emanates from several quarters and ranges across the political spectrum.

Notwithstanding the numerous criticisms that observers have lodged at the statute and its effectuation, a number of which have considerable validity, the federal reform initiative has afforded many advantages. Unfortunately, these benefits have received comparatively little recognition. Because the reform's salutary aspects could …

The D.C. Circuit As A National Court, Carl W. Tobias

Law Faculty Publications

Every President since Franklin Delano Roosevelt has appointed lawyers from across the country to the United States Court of Appeals for the District of Columbia Circuit ("D.C. Circuit") and has been accused of ignoring the members of the D.C. Bar. The tradition of nationwide recruitment for appointment to the D.C. Circuit has served the District and the nation well, yielding some of the court's and America's finest judges.

The practice of seeking nominees nationally to fill vacancies on the D.C. Circuit recently faced a serious challenge. Many members of the D.C. Bar, who have long opposed this practice, developed a …

Rethinking Federal Judicial Selection, Carl W. Tobias

Law Faculty Publications

The inauguration of President Bill Clinton, who will appoint more than three hundred new federal judges, affords an auspicious occasion for rethinking the process of federal judicial selection. The current federal bench, two-thirds of whose members were appointed by Presidents Ronald Reagan and George Bush, reflects increased conservatism and is quite homogeneous in terms of race, gender, and political perspectives. For instance, President Reagan appointed a dramatically smaller, and President Bush named a substantially lower, percentage of African-Americans than did President Jimmy Carter. The Republican chief executives made these appointments although they had much larger, more experienced, pools of female …

Opt-Outs At The Outlaw Inn: A Report From Montana, Carl W. Tobias

Law Faculty Publications

Report of Prof. Tobias' CLE presentation at the Montana State Bar Association's annual meeting, highlighting the 1993 revisions to the Federal Rules of Civil Procedure and the Civil Justice Reform Act.

Keeping The Covenant On The Federal Courts, Carl W. Tobias

Law Faculty Publications

When Governor Clinton was campaigning for the presidency, he contended that the federal court appointments of President Ronald Reagan and President George Bush significantly reduced the diversity that President Jimmy Carter had strongly promoted. Candidate Clinton pledged, if elected President, to rectify that situation. Since the election, Bill Clinton has fulfilled his promise by naming to the judiciary outstanding attorneys who reflect the diverse composition of American society. Now that President Clinton has completed his initial year of service, it is important to analyze the Clinton Administration's record of choosing judges to ascertain precisely how the President has kept his …

Executive Branch Civil Justice Reform, Carl W. Tobias

Law Faculty Publications

The authors of several papers in this Symposium have justifiably criticized the essay that former Vice President Dan Quayle published in Volume 41 of The American University Law Review. Many knowledgeable observers of the civil justice system have leveled equally legitimate criticism at civil justice reform initiatives that the Bush administration instituted. Questionable data, arguable policy, or overheated political rhetoric supported certain aspects of the Vice President's paper, as well as most of the proposals developed by the Competitiveness Council that the Vice President chaired and numerous efforts of the Republican administration in the area of civil justice reform.

One …

Closing The Gender Gap On The Federal Courts, Carl W. Tobias

Law Faculty Publications

When the Bush Administration placed comparatively few women on the bench during its initial half-term, I criticized President Bush's mediocre record. I was pleasantly surprised to learn that the Bush Administration ultimately appointed an unprecedented percentage of women to the federal courts; 36 of the 192 judges President Bush appointed were women (18.7%).

Notwithstanding the Bush Administration's efforts, the percentage of female judges remains significantly lower than the representation of women in the legal profession. Moreover, President Bush left 100 open judgeships. These vacancies mean that President Bill Clinton can greatly increase the numbers and percentages of female judges and …

Conservative Supreme Court: Its Impact On Traditional Values, Donald E. Wildman, Benjamin W. Bull

University of Richmond Law Review

Most court watchers agree that the changing composition of the Supreme Court will ineluctably favor the interests of traditional values organizations like the American Family Association. The next decade will surely see the Court return to a more balanced approach in line with the preservation of family values. Certainly some will characterize the new Court as more conservative. To the extent that it will emphasize core principles in the Constitution as the bedrock from which it must proceed, it will be conservative. Yet this is simply a return of the Court to its intended function: interpretation and application of law …

Reagan, Bush And The Supreme Court, Arthur J. Kropp

University of Richmond Law Review

What may be the most significant achievement of the Reagan-Bush years is one we have only begun to appreciate: the radical revolution in the federal courts. After nearly three terms of conservative presidents bent on remaking the federal judiciary, the courts have been transformed. They are far more conservative, and, despite Administration rhetoric to the contrary, decidedly more activist.