Courts Commons^™

Why Congress Should Not Split The Ninth Circuit, Carl W. Tobias

Law Faculty Publications

During the first session of the 104th Congress, the United States Senate Judiciary Committee approved Senate Bill 956, a proposal to split the United States Court of Appeals for the Ninth Circuit. The measure would have established a new Twelfth Circuit consisting of Alaska, Arizona, Idaho, Montana, Nevada, Oregon, and Washington and would have left California, Hawaii, Guam, and the Northern Mariana Islands in the Ninth Circuit. This vote may appear insignificant; however, it could actually have had enormous consequences.

Congress has divided appeals courts only twice since creating the modem appellate system in 1891. Neither House of Congress had …

Some Cautions About Structural Overhaul Of The Federal Courts, Carl W. Tobias

Law Faculty Publications

Once a Century: Time for a Structural Overhaul of the Federal Courts substantially improves understanding of the federal judicial system. Professor Martha Dragich first clearly describes the phenomena which she attributes to unprecedented increases in the number of appeals since the 1960s. The writer asserts that this "crisis of volume" has compromised "appellate justice" and made federal case law less "coherent." Because Professor Dragich finds that appeals courts' dual responsibilities to correct error in specific cases and to declare the law have also decreased justice and coherence, she proposes the creation of District Court Appellate Panels for correcting error and …

Suggestions For Studying The Federal Appellate System, Carl W. Tobias

Law Faculty Publications

The United States Congress recently authorized the appointment of a Commission on Structural Alternatives for the Federal Courts of Appeals. That entity has an historic opportunity to analyze carefully the federal appellate system and make valuable suggestions for improvement, thereby charting the destiny of the intermediate appeals courts for the twenty-first century. The creation of this new commission is important because now is a critical time for the appellate courts. All twelve regional circuits have experienced exponential docket growth but have possessed insufficient resources to treat the cases: this crisis of volume now seriously threatens the system.

This Article initially …

Studying The Federal Appellate System, Carl W. Tobias

Law Faculty Publications

No abstract provided.

A Sixth Circuit Story, Carl W. Tobias

Law Faculty Publications

At the May 4, 1994 regular meeting of the Judicial Council of the United States Courts for the Sixth Circuit, the Council voted to "suspend further review of local rules until it receives further guidance from Congress, the Judicial Conference of the United States or by case law on the question of whether provisions of the Civil Justice Reform Act take precedence over the Federal Rules of Civil Procedure. " By so doing, the Council was ostensibly discharging responsibilities assigned to it by the Judicial Improvements and Access to Justice Act (JIA) of 1988. The JIA requires that every circuit …

Congress Considers Bill To Split Ninth Circuit, Carl W. Tobias

Law Faculty Publications

Late last year, the Senate Judiciary Committee approved a measure that would divide the U.S. Court of Appeals for the Ninth Circuit. The proposal, Senate Bill 956, would create a new Twelfth Circuit comprised of Alaska, Arizona, Idaho, Montana, Nevada, Oregon, and Washington, leaving California, Hawaii, Guam, and the Northern Mariana Islands in the Ninth Circuit. The Judiciary Committee vote is significant because no bill to split the Ninth Circuit has ever received floor debate. The second session of the 104th Congress could well divide the court.

The Proposal To Split The Ninth Circuit, Carl W. Tobias

Law Faculty Publications

Individuals and organizations concerned about natural resources should be aware of the recent controversial proposal to divide the United States Court of Appeals for the Ninth Circuit. During the first session of the 104th Congress in the fall of 1995, the United States Senate Judiciary Committee approved Senate Bill 956, a measure that would establish a new Twelfth Circuit consisting of Alaska, Arizona, Idaho, Montana, Nevada, Oregon, and Washington, and that would leave California, Hawaii, Guam, and the Northern Mariana Islands in the Ninth Circuit. The Judiciary Committee vote was important for two reasons: the circuit's division could substantially affect …

Warren Burger And The Administration Of Justice, Carl W. Tobias

Law Faculty Publications

Professor Tobias examines the career of Chief Justice of the United States Warren E. Burger, emphasizing his "enormous contribution to improving the administration of Justice in the United States."

The Proposal To Split The Ninth Circuit Court Of Appeals, Carl W. Tobias

Law Faculty Publications

Symposium introduction

An Analysis Of Federal Appellate Court Study Commissions, Carl W. Tobias

Law Faculty Publications

During the 104th Congress, senators representing Pacific Northwest states mounted the fourth serious effort to split the United States Court of Appeals for the Ninth Circuit since 1983. The Senate Judiciary Committee approved a bill that would have divided the court; however, the Senate eventually passed a measure which would have created a national study commission to analyze the federal appellate system. This compromise was only one of several study proposals that Congress considered in 1995 and 1996. For example, California Governor Pete Wilson and Ninth Circuit Judge Diarmuid O'Scannlain recommended the establishment of commissions which would have assessed the …

Motions For Sanctions Annual Survey Of Virginia Law, William Hamilton Bryson

Law Faculty Publications

For centuries, the legal profession has had rules of professional conduct. Although they were unwritten, they were well known. The rules covered honesty in pleading and practice and also required the general politeness expected of decent people. These rules were not always followed, nor were they always enforced when not followed. Sadly, in modern times, these rules are being disregarded more frequently and the costs to others, both within and outside the profession, are increasing dramatically. This deplorable situation has caught the attention of the organized bar, and codes of professional civility have been issued in recent times. The Virginia …

Novak V. Commonwealth: Are Virginia Courts Providing Special Protection To Virginia's Juvenile Defendants?, Ellen R. Fulmer

University of Richmond Law Review

On March 9, 1991, Shawn Paul Novak was charged with the murder of two young boys, Daniel Grier, age nine, and Christopher Weaver, age seven. The boys had disappeared on March 4 and their bodies were found the next day after an extensive search. The police inquiry into the murders led to the questioning of a number of people, including Shawn, then age sixteen. Shawn was questioned on four separate occasions. At no time prior to, during, or after any of these questioning sessions was Shawn read his Mirandawarnings which specify the rights to which he was entitled under the …

The Civil Justice Reform Act Amendment Act Of 1995, Carl W. Tobias, Margaret L. Sanner

Law Faculty Publications

Four members of the Senate Judiciary Committee introduced the Civil Justice Reform Act Amendment Act of 1995 on February 23, 1995 as Congress was considering numerous aspects of the Contract With America, most relevantly the legal reforms in its ninth tenet. Senator Orrin Hatch (R-Utah), Chair of the Senate Judiciary Committee, Senator Charles Grassley (RIowa), Chair of the Subcommittee on Courts and Administrative Practice, Senator Joseph Biden (D-Del.), the ranking minority member of the Senate Judiciary Committee, and Senator Howell Heflin (D-Ala.), former Chair of the Courts and Administrative Practice Subcommittee, sponsored the legislation. Passage of the proposal by the …

Filling The Federal Courts In An Election Year, Carl W. Tobias

Law Faculty Publications

President Bill Clinton appointed unprecedented numbers and percentages of highly qualified female and minority lawyers to the federal bench during his initial half-term in office, substantially surpassing the records of Presidents Ronald Reagan, George Bush and Jimmy Carter. The Clinton administration invoked an efficacious, uncontroversial selection process and filled a significant percentage of the 113 judicial openings that existed when it assumed office.

Some federal court observers questioned whether the Chief Executive could maintain this commendable record during his presidency's third year. More specifically, they wondered if Republican Party control of the United States Senate, which must approve nominees, and …

Enterprise Zones In The Courts: Legal Challenges To State Economic Redevelopment Legislation, Patrick J. Skelley Ii

University of Richmond Law Review

The declining state of our nation's cities has been, and continues to be, a frequent source of news and fodder for political debate. Unemployment, urban blight, crime, and economic dislocation are just a few of the inner-city's afflictions which occupy the American mind. A multitude of theories have been advanced in order to explain the persistence of urban deterioration, accompanied by an array of governmental attempts to reverse, or at least stem, the trend of inner-city decay.

New Certiorari And A National Study Of The Appeals Courts, Carl W. Tobias

Law Faculty Publications

Elitism, Expediency, and the New Certiorari: Requiem for the Learned Hand Tradition is a thought-provoking critique of the United States Courts of Appeals. Professors William Richman and William Reynolds maintain that dramatic increases in appellate filings have transformed the appeals courts during the last quarter-century, prompting systemic constriction of procedural opportunities, particularly for parties with few resources or little power. The authors find these changes profoundly troubling and propose that Congress radically expand the number of appellate judges.

Individuals and institutions, such as expert study committees, which have analyzed the federal courts, agree with much of the authors' descriptive assessment. …

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 …

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 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 …

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.

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 …

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.

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, …

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, …

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.

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 . . . .

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 …

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.