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American Bar Association (2)
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American Bar Association (2)
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Philip W. Buchen Files
Philip Buchen's General Subject Files
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Federal judges
Presidential appointments
Law and legislation
Presidential powers
Presidential messages
Presidential campaign, 1976
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The original documents are located in Box 1, folder "American Bar Association (2)" of the
Philip Buchen Files at the Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Gerald R. Ford donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
Digitized from Box 1 of the Philip Buchen Files at the Gerald R. Ford Presidential Library
wanou Et SM
Deliver to Kon a
ask him to re turn
to me who whe 15
finished R. with it, GERALD & FORD ned KAC
9/9/76
MR. Buchen
s.W.Gate TOVIL of
57 of MIN plas
Gall-331-2000
INY of
Kg.
(ind)
ABA
AMERICAN BAR ASSOCIATION
GOVERNMENTAL
RELATIONS OFFICE
1800 M STREET, N.W. WASHINGTON, D.C. 20036 TEL. (202) 331-2200
Writer's Direct Number: 331-2210
DIRECTOR
Herbert E. Hoffman
ASSOCIATE DIRECTOR
Gene S. Bergoffen
STAFF DIRECTOR FOR
ADMINISTRATION
Albin C. Burkman, Jr.
STAFF DIRECTOR FOR
BAR LIAISON
Robert D. Evans
September 2, 1976
STAFF DIRECTOR FOR
GOVERNMENTAL AFFAIRS
Craig H. Baab
STAFF DIRECTOR FOR
INFORMATION SERVICES
Alice Fins
Philip W. Buchen, Esquire
ASSISTANT TO DIRECTOR
Counsel to the President
& ASSOCIATE DIRECTOR
Gayle E. Novig
The White House
Washington, D.C. 20500
Dear Phil:
Enclosed is the report of the Pound Conference
Task Force to which Justin Stanley referred in his
conversation with you.
As Mr. Stanley may have told you, the report was
presented to the Association's Board of Governors at
the Annual Meeting in Atlanta early last month. It is
now being printed for distribution to Section and
Committee Chairmen, with some changes and corrections.
It is my understanding that the changes are not
significant.
When the final printing has been completed we
will forward you several copies.
Sincerely,
Start
Herbert E. Hoffman
HEH:pes
Enclosure
CC: Lowell R. Beck
Wantland Sandel, Jr.
GERALD FORD LIBRARK
MEMORANDUM
TO:
The Board of Governors
FROM:
Griffin B. Bell, Chairman, Pound Conference Follow-up
Task Force
RE:
Report of Task Force
DATE:
August 2, 1976
The report of the Task Force is attached. The report
contains a number of recommendations which are set forth
at pages 6-14, immediately following the Introduction.
The members of the Task Force are gráteful for the
opportunity to have considered this most important subject
and will be pleased to provide such additional elaboration
or explanation as the Board of Governors may find useful in
the consideration of this report.
FORD & LIBRARY GERALD
REPORT OF
POUND CONFERENCE FOLLOW-UP TASK FORCE
AUGUST, 1976
FORD j LIBRARY GERALD
THE TASK FORCE
Honorable Criffin B. Bell, Chairman
Honorable William Erickson
Jane L. Frank, Esquire
Francis R. Kirkham, Esquire
Honorable Wade H. McCree
Professor Maurice Rosenberg
Honorable Walter V. Schaefer
A. Leo Levin, Consultant
Wantland L. Sandel, Jr., Esquire,
Staff Liaison
FORD & LIBRARY 07VN30
TABLE OF CONTENTS
MEMBERS OF THE TASK FORCE
i
TABLE OF CONTENTS
ii
INTRODUCTION
1
SUMMARY OF RECOMMENDATIONS
6
I. NEW MECHANISMS FOR THE DELIVERY OF JUSTICE
15
A. Neighborhood Justice Centers
15
1. The Varieties of Dispute Processing
15
2. Designing Pilot Projects
16
3. Research and Development
18
B. Small Claims Courts
19
C. Arbitration
20
1. Compulsory Arbitration
20
2. Increased Use of Commercial
22
Arbitration by Contractual
Provision
D. Administrative Agencies; II Sunset Laws"
25
II. ELIMINATING THE NEED FOR JUDICIAL ACTION
31
A. Changes in the Substantive Law
31
1. Decriminalization
31
2. Professional Malpractice
31
3. No-Fault Provisions as an Alternative to
32
Actions Based on Negligence
4. Simplification
32
B. Elimination of the Use of Courts in Non-
Adversarial Proceedings
3 BERALB FORD LIBRART
III. CRIMINAL PROCEDURE
35
IV. CIVIL PROCEDURE
43
A. Correcting Abuses in the Use of Discovery
43
B. The Use of Sanctions
44
C. Class Actions
47
D. The Jury
51
1. The Right to Jury Trial
51
2. Jury Trial Procedures
52
E. Special Problems of Federal Jurisdiction
54
V. ASSURING THE AVAILABILITY OF LEGAL SERVICES
63
VI. JUDGES
67
VII. COLLECTION AND EVALUATION OF DATA
70
FORD & GERALD LIBRARY
-iii-
INTRODUCTION
The National Conference on the Causes of Popular Dis-
satisfaction with the Administration of Justice, held recently
in Saint Paul in commemoration of Dean Pound's classic address,
was designed for "long-range planning," " to look ahead to the
time when there will be "260 million [Americans], with social,
economic and political forces that will generate incalculable
problems and conflicts to be resolved. Inevitably, the "vexing
problems" of today, exacerbated by a litigation explosion of
unprecedented dimension, were also discussed. The Conference
generated a large number of proposals for reform and, in add-
ition, identified a significant number of issues considered
worthy of further study and exploration
This Task Force was appointed by President Walsh to assure
that the ideas presented at the Pound Conference would be care-
fully considered by those organizations or agencies best able
to evaluate and implement them.
The subjects discussed at Saint Paul were many and varied.
The Conference heard an eloquent and vigorous reaffirmation of
The Priority of Human Rights in Court Reform. It heard the hope
expressed that "the weak, the poor, the powerless" would be
among the beneficiaries of whatever change the Conference gene-
6
rated.
The recommendations presented were intended to achieve
the delivery of justice to
FORD is QERALD LIBRARY
-1-
all; none presented at Saint Paul, no recommendation pre-
sented in this report, is intended to detract from that goal.
The specific proposals presented would significantly
affect both civil litigation and criminal prosecutions, in
state as well as in federal courts. They would place in-
creased emphasis on avoiding controversy and would create new
forums for dispute resolution, providing alternatives both to
jury and non-jury trials. Obviously, no single governmental
agency has the authority to implement so wide a range of rec-
ommendations. Nor can any one organization or academic in-
stitution be expected to research all of the questions identi-
fied as worthy of study.
Some recommendations should be referred now to an official
body able to effect change; some require evaluation and
refinement before being referred. Other suggestions, however,
need substantial study and analysis before specific, practi-
able recommendations will emerge. We believe these should be
routed to other forums where they can be properly considered
and developed. In the report which follows we have attempted
to identify those in each category and to suggest appropriate
next steps as regards each proposal.
Lawyers have a special responsibility, imposed by the
Code of Professional Responsibility, to "assist in improving
FORD & OFRALO LIBRARY
-2-
the legal system. 7/ But lawyers are not the only ones with
important contributions to make and we have not hesitated to
recommend that others be involved in the process of shaping
solutions to present problems. We have not attempted to
deal with all of the questions which ultimately must be an-
swered, nor have we attempted to choose between diverse points
of view on many issues expressed at the Conference. Obedient
to our mandate, we have attempted to recommend "what specific
action the Association should take to see that answers are
ultimately forthcoming. "
It is important to keep firmly in mind that neither
efficiency for the sake of efficiency, nor speed of adjudication
for its own sake are the ends which underlie our concern with
the administration of justice in this country. The ultimate
goal is to make it possible for our system to provide justice
for all. Constitutional guarantees of human rights ring hollow
if there is no forum available in fact for their vindication.
Statutory rights become empty promises if adjudication is too
long delayed to make them meaningful or the value of a claim
is consumed by the expense of asserting it. Only if our courts
are functioning smoothly can equal justice become a reality
for all.
-3-
The ultimate goal, it is worth reiterating, is the
fullest measure of justice for all. That goal cannot be
achieved without change, but as the Chief Justice reminded
us in his keynote address "change is a fundamental law of
life. " 118/ What is important, he added, "is that lawyers ful-
fill their historic function," and help assure "orderly
evolution.
This report is intended to further that process, and
to suggest a program for action by the American Bar Assoc-
iation designed to contribute significantly to the improve-
ment of the administration of justice in this country.
-4- -
FOOTNOTES TO INTRODUCTION
1. Pound, The Causes of Popular Dissatisfaction with the
Administration of Justice, address delivered at the
1906 Annual Meeting of the American Bar Association
in Saint Paul, Minnesota, printed in 29 A.B.A.
Reports 395 (1906), reprinted, 35 F.R.D. 273 (1964).
The Conference was jointly sponsored by the Judicial
Conference of the United States, the Conference of
Chief Justices, and the American Bar Association.
2. Burger, 1976 Annual Report on the State of The
Judiciary, Supreme Court Reports, vol 96, no. 9,
p. 3, 8 (1976). The purpose of the Conference was
also described by Chief Justice Burger in the key-
note address, Burger, Agenda for 200 A.D. - the Need
for Systematic Anticipation, National Conference on
the Causes of Popular Dissatisfaction with the
Administration of Justice, 70 F.R.D. 83 (1976).
3. Burger, 1976 Annual Report, supra note 2, at 3.
4. The major addresses delivered at the Conference are
reprinted in 70 F.R.D. 79 (1976).
5. Higginbotham, The Priority of Human Rights in Court
Reform, National Conference on the Causes of Popular
Dissatisfaction with the Administration of Justice,
70 F.R.D. 134 (1976).
6. Burger, keynote address, supra note 2, at 96.
7. Canon 8
8. Burger, keynote address, supra note 2, at 96.
9. Id.
-5-
SUMMARY OF RECOMMENDATIONS
The ultimate goal of our efforts is to achieve the fullest
measure of justice for all. To that end we make the following
recommendations:
I. NEW MECHANISMS FOR THE DELIVERY OF JUSTICE
A. Neighborhood Justice Centers
1. We recommend that the American Bar Association, in
cooperation with local courts and state and local bar associations,
invite the development of models of Neighborhood Justice Centers,
suitable for implementation as pilot projects. Such facilities
would be designed to make available a variety of methods of
processing disputes, including arbitration, mediation, referral to
small claims courts as well as referral to courts of general
jurisdiction. (See pp. 15-18)
2. We recommend that the American Bar Association under-
take to stimulate research and experimentation designed to develop
criteria by which to identify disputes most likely to profit from
mediation, fact-finding and other alternative mechanisms of dispute
processing. (See p. 18 )
3. We recommend that the American Bar Association under-
take to stimulate research and experimentation designed to encourage
-6-
resolution of disputes without resort to governmental agencies,
particularly in the area of consumer complaints. (See pp.18-19)
B. Small Claims Courts
4. Mindful of the potential inherent in the revitalization
and expanded use of small claims courts and of the forthcoming
Conference on Minor Dispute Resolution being planned by the
American Bar Association, we recommend that state and local bar
associations be involved in the Conference and in programs for
the implementation of recommendations which may result from the
Conference. In that connection, we invite consideration of a
pattern of experimentation, evaluation and widespread adoption
of those programs which prove successful. (See P. 20 )
C. Arbitration
5 (a). We recommend that the Division on Judicial Admin-
istration consider the potential utility of programs of compulsory
arbitration with a right of appeal de novo, tailored to local
needs and circumstances, with a view to the development of a pro-
gram for the federal courts.
5(b). We further recommend that the Division of Judicial
Administration, in cooperation with state and local bar associations
and the National Center for State Courts, seek more widespread
adoption of such programs in state courts.
5 (c). We recommend that the American Bar Association
invite the Conference of Chief Justices, a cosponsor of the Pound
Conference, to consider a program of encouraging the development of
-7-
proposals for compulsory arbitration, tailored to local needs and
circumstances and to promote the implementation of such programs.
(See pp. 20-22)
6. We recommend that the American Bar Association, in
cooperation with the American Arbitration Association, undertake a
program designed to increase the use of commercial arbitration in
cases of repetitive litigation among members of the same industry,
particularly where the expertise of arbitrators would be helpful.
We further recommend that such a program should be concerned with
identifying criteria for the identification of additional categories
of agreements appropriate for commercial arbitration. (See pp. 22-24)
D. Administrative Agencies; "Sunset Laws"
7. We recommend that the Section on Administrative Law,
consider the feasibility and desirability of increased use of the
administrative process as an alternative to resort to the courts.
(See P. 25 )
8. We recommend that the American Bar Association, acting
through the Section on Administrative Law, establish a special
commission composed of lawyers and non-lawyers, to study the "sunset
laws", statutes which provide for automatic termination of administra-
tive agencies after a specified term of years unless the legislature
act affirmatively to continue their existence. We further recommend
that such study be undertaken with a view to making legislative
recommendations. (See pp.25-26
9. We recommend that the Section on Administrative Law
-8-
review all instances of multiple appeals as of right from administra-
tive determinations with a view to proposing remedial legislation.
(See pp.26-27
II. ELIMINATING THE NEED FOR JUDICIAL ACTION
A. Changes in the Substantive Law
10. We recommend that the Conference of Chief Justices
be invited to consider whether decriminilization of "victimless"
crimes such as public drunkenness should be referred to appropriate
state agencies for study and possible action. We further recommend
that state and local bar associations should be invited to consider
and evaluate proposals in this area. (See p. 31 )
11. We recommend that the Conference of Chief Justices be
invited to consider proposals to limit the right of recovery in
cases of professional malpractice with a view to referring them to
appropriate state agencies for evaluation and possible action.
(See pp31-32)
12. We recommend that the American Bar Association, acting
through the appropriate sections, monitor experience with no-fault
statutes. (See p. 32 )
B. Elimination of the Use of Courts in Non-Adverserial
Proceedings
13. The use of courts in non-adverserial proceedings is
an unwise allocation of scarce resources, With respect to some
such matters -- e.g., approving changes of name, incorporating
membership corporations and making appointments to semi-public
is
FORD
GERALD
LIBRARY
-9-
office -- the problem may be relatively simple and amenable to
solution. With respect to other matters -- e.g., uncontested divorce,
child custody and adoptions -- the issues are frequently subtle and
complex. We recommend that the subject be referred to the Conference
of Chief Justices for such further reference as they deem appropriate;
and we further recommend that the attention of state and local bar
associations and the interested sections of the American Bar Associa-
tion be invited to this problem. (See pp.33-34
IV. CRIMINAL PROCEDURE
14. Mindful of the leadership of the American Bar
Association and the Section of Criminal Justice in developing
Standards for Criminal Justice and in seeking their implementation
in every state, and mindful of recent changes in the law governing
illegally obtained evidence, we recommend that the Section of
Criminal Justice give a high priority to the development of
effective deterrents to illegal search and seizure by law enforce-
ment officers; and we further recommend that the National Conference
of State Trial Judges be invited to contribute to the solution of
this pressing problem. (See PP.35-39
V. CIVIL PROCEDURE
15 (a). The Section on Litigation, in coordination with
the Division on Judicial Administration, should accord a high
priority to the problem of abuses in the use of pretrial proce-
duures with a view to appropriate action by state and federal courts.
The National Conference of State Trial Judges should be invited to
join in a common effort to provide a solution for this problem.
(See pp. 43-44)
-10-
15(b). Early identification of issues in complex litiga-
tion can serve to reduce the cost of discovery and to expedite dis-
position of the case. We recommend that the Section on Litigation
consider the utility of such early identification of issues and how
best to assure its use in appropriate cases. (See pp. 43-44)
B. The Use of Sanctions
16. We recommend that procedural rules provide for
sanctions for the willful filing of baseless or otherwise improper
pleadings which contribute to delay and to increased expense of
litigation. We further recommend that the Section on Litigation
study the problem of enforcement and make recommendations appropriate
for state and federal courts. (See pp. 44-45)
17. We recommend that the Section on Litigation consider
the possibility of creative use of sanctions, such as the taxing of
costs, to serve as a useful deterrent to needless extension of
litigation. We further recommend the Michigan mediation system
as worthy of study in this context. (See p. 46)
C. Class Actions
18(a). We recommend that all concerned sections accord
a high priority to evaluation of existing rules and statutes re-
lating to class actions for the purpose of assessing current
proposals for change, both state and federal, and for the further
purpose of initiating recommendations for change. Such considera-
tion should encompass not only the procedures governing class
actions, but where the availability of a class action has substan-
tive implications, it should include the substantive law as well.
(See pp. 47-50)
-11-
18(b). We further recommend that particular consideration
be given to the desirability of (1) substituting an "opt-in"
procedure for the present "opt-out" procedure in actions brought
under Federal Rule 23 (b) (3), or their state equivalents; and (2)
providing for greater judicial control over attorney's fees in
class actions. (See pp. 47-50)
D. The Jury
19. We recommend that the American Bar Association invite
the American Bar Foundation, the Institute of Judicial Administration,
the Federal Judicial Center or other appropriate organization to
undertake a thorough study of the proper scope of the right to
jury trial in civil cases and to make recommendations concerning
any changes in present practices which may be desirable. Such study
should include consideration of the recent extension of the right
to jury trial as the result of the merger of law and equity, re-
examination of thedoctrines governing right to jury trial where
new causes of action are created by statute and the use of the
jury in complex litigation. (See pp. 51-52)
20. We recommend that the ABA Standards Relating to
Trial Courts be referred to the Conference of Chief Justices and
to the Judicial Conference of the United States with a view to
improving present procedures relating to jury selection and jury
utilization. (See pp. 52-53)
21. We recommend that the Section on Litigation consider
new techniques, or the desirability of more widespread use of
existing techniques, to assure better communication of instruc-
tions to the jury. (See pp. 53-54)
-12-
E. Special Problems of Federal Jurisdiction
22. We recommend that the Conference of Chief Justices
and state and local bar associations be invited to study the
contemporary utility of diversity jurisdiction with a view to en-
dorsement of current proposals for its curtailment or elimination.
(See p. 54)
23. We recommend that the Section on Judicial Adminis-
tration and the Committee on Coordination of Judicial Improvements
study current proposals for elimination of three-judge courts and
direct appeals, with reasonable exceptions, with a view to
vigorous and effective support of legislation which would achieve
this end. (See p. 55)
V. ASSURING THE AVAILABILITY OF LEGAL SERVICES
24. We recommend that the American Bar Association
continue its efforts to assure the availability of legal services
to all, and to this end, that it maintain a close liaison with the
Congress to assist in the development of specific recommendations and
to aid in expediting their implementation. We further recommend that
the ABA continue to work with state and local bar associations in
this area. (See pp. 63-65)
VI. JUDGES
25. We recognize that specific provisions designed to assure
judges of superior quality in adequate numbers have been included
in the ABA Standards on Court Organization and that there exists
a special committee charged with seeking implementation of those
standards. The development of a mechanism designed to assure
periodic legislative consideration of the need for new judgeships
would go far to alleviate a recurring problem in judicial administra-
-13-
tion. Specific proposals intended to achieve this end have been made.
We recommend that these proposals be considered by the Section on
Judicial Administration, the Conference of Chief Justices and the
Judicial Conference of the United States. (See pp. 67-68)
VII. COLLECTION AND EVALUATION OF DATA
26. We recommend that the American Bar Association
seek the creation of a Federal office for the collection of data
relevant to judicial administration and to dispute resolution generally.
Such an office would collect data, both state and federal, civil
and criminal, and would be authorized to undertake special studies
relevant to the administration of justice. It would work in close
cooperation with the National Center for State Courts, the Federal
Judicial Center and other groups. We recommend that ABA approval
be conditional on approval by the Conference of Chief Justices.
(See pp. 70-71)
-14-
I. NEW MECHANISMS FOR THE DELIVERY OF JUSTICE
A. Neighborhood Justice Centers
1. The Varieties of Dispute Processing
A trial in a court of record is one way of resolving
disputes. It is neither cheap nor speedy and society has long
sought for alternative ways to resolve disputes that do not really
require full-blown trials. Arbitration and administrative
adjudication are familiar mechanisms; small claims courts provide
a less formal, less costly and more expeditious means of providing
claimants with a day in court. Other alternatives include mediation,
conciliation, fact-finding and negotiation. The use of ombudsmen
should also be mentioned and, in addition, there are various
mechanisms of dispute avoidance, institutionalized effort to prevent
potential grievances from ripening into claims which will have to
be adjudicated or otherwise resolved.
It was urged at Saint Paul that alternative methods of
dealing with disputes, if properly developed and made widely avail-
able in realistic fashion, offered great promise of meeting the
need of claimants and, in the process, providing relief to the
courts SO that they might be available for litigants with claims
which only courts can adjudicate.
If some disputes are first to be subjected to mediation or
fact-finding, while others are to be sent to arbitration and still
FORD
LIBRARY
-15-
others to courts of record, it becomes necessary to employ
some method of "routing" claimants to the appropriate forum.
One model, described at the Saint Paul Conference, provided for
a screening clerk located in a Dispute Resolution Center. Such a
center might offer a variety of services. In addition to a
trial court of general jurisdiction, it might house a Malpractice
Screening Panel, an Ombudsman, a mediation service and other
facilities as well.
2. Designing Pilot Projects
We believe these proposals offer sufficient promise of
significant improvement in the delivery of justice to warrant
the development, on an experimental basis, of Neighborhood Justice
Centers designed to make available a variety of methods of dispute
processing.
We do not here intend to describe a specific model; indeed,
what is appropriate for one locality may not be suitable for another.
As will be developed below, we recommend that the American Bar
Association undertake to stimulate the development of practicable
models, with a view to implementing one or more pilot projects.
Some detail, however, is needed to describe the nature of the
facility which we envision. What follows is intended solely for
that purpose.
A Neighborhood Justice Center would be manned by paralegals,
with perhaps one young lawyer for technical advice. It might well
-16-
be designed to include the services of a mediator. Such a
facility could be expected to prove effective in disposing of
some civil disputes and perhaps some criminal matters. It
might be helpful in avoiding litigation of "family disputes,"
for example. Where the dispute was not resolved rapidly at the
Neighborhood Center, persons aggrieved could be referred to a
small claims court, to arbitration, or to the court of general
jurisdiction.
We recommend that the American Bar Association invite the
development of specific models of Neighborhood Justice Centers,
one or more of which would then be funded as pilot projects.
Such pilot projects would, of course, be valuable in themselves
in providing for effective and efficient delivery of justice. Of
greater significance, they could be evaluated, refined and
modified and where warranted replicated in other communities.
Our primary purpose is to stimulate experimentation,
evaluation and widespread emulation of successful programs.
We urge, as a first step, that the American Bar Association take
the initiative and invite the active participation of local courts
and local and state bar associations in developing proposals for
evaluation. Such submissions would, of course, contain specific
proposals for the funding of pilot projects, which funding might
be by local resources, by existing Federal agencies, or by
interested foundations. Successful pilot projects begin with
-17-
thoughtful and creative design. Inevitably, such planning takes
time; it is important that the process begin, and that it begin as
soon as possible.
3. Research and Development
At Saint Paul there was some emphasis on the need for the
development of criteria by which we could more readily identify those
types of disputes most likely to profit from mediation, fact-find-
ing or other alternative mechanisms of dispute processing. We
recognize the potential value of research designed for thispurpose.
Nothing in our earlier proposal concerning Neighborhood Justice
Centers is intended to minimize the need. On the contrary, the
program detailed above should serve to stimulate such research,
particularly since the evaluation of success or failure is of the essence
in any experimental program.
There are various non-governmental as well as governmental
programs which should be considered. In Sweden, Public Complaints
Boardsalthough their recommendations are not binding, appear to
4
have had a beneficient influence.
Non-governmental programs
by civic organizations or by industrial associations may also con-
tribute significantly to avoiding disputes, or to their prompt
resolution should they arise.
Pilot projects designed to resolve disputes fairly and ef-
ficiently without recourse to government should be encouraged.
They need not await the results of long-term study. Particularly
-18-
in the field of consumer complaints, any serious program designed
to resolve disputes and to deliver justice without resort to
the courts or to other instrumentalities of government, should
also be encouraged.
We recommend that the ABA undertake to stimulate research
in this area, including experimentation.
B. Small Claims Courts
Revitalization and expanded use of small claims courts
offers substantial promise of assuring the delivery of justice to
all citizens in a manner which is both speedy and efficient. The
American Bar Association is currently planning a Conference on
Minor Dispute Resolution, to take place in May, 1977, Empirical
research designed to provide needed factual information has already
been undertaken.
We recommend that state and local bar associations be
involved both in the Conference and in programs for the implementa-
tion of recommendations for change which may result.
Again, we recommend a pattern of experimentation, evaluation
and widespread adoption of those programs which prove successful.
-19-
C. Arbitration
1.
Compulsory arbitration
Experience has already supplied a substantial body of
information pointing to the utility of a procedure under
which certain types of cases are submitted to compulsory
arbitration before three members of the Bar, with a right
5
of appeal de novo.
Such provisions are in effect in
6
8
Pennsylvania, Ohio, and New York and in some cases
apply to virtually all law suits involving claims for money
damages up to $10,000.
The reports on the operation of a number of these rules
have proved highly favorable. They provide far speedier
adjudication than the courts; procedures are more informal
and less expensive. Moreover, the diversion of appropriate
claims into the arbitration process relieves the pressure on
the court system to the benefit of all litigants.
Adoption of compulsory arbitration procedures in federal
10/
courts could prove beneficial.
The Judicial Conference
of the United States, acting through the appropriate com-
mittees, may wish to consider a national rule. If the
Judicial Conference chooses not to promulgate a rule
applicable nationally, the possibility of adopting local
rules in the various circuits or in metropolitan districts
-20-
deserves consideration. We recommend that the Division on
Judicial Administration seek adoption of an appropriate
federal program.
We also recommend that the Division of Judicial Administra-
tion encourage state courts to explore the potential utility
of arbitration procedures. State and local bar associations
should be involved in the effort.
We recommend that the Conference of Chief Justices con-
sider the potential advantages of encouraging the develop-
ment of proposals for compulsory arbitration, tailored to
11/
local needs and circumstances. We recognize that the
National Center for State Courts can perform significant
service by the dissemination of information presently avail-
able, design of specific proposals, and evaluation of the
data generated by the adoption of the program in any given
court. We therefore recommend that the Section on
Judicial Administration maintain continued close contact
with the National Center to assure a coordinated effort.
It is important to recognize that the success of a pro-
gram of compulsory arbitration depends on the degree of
legislative support for the program in the form of funds
with which to operate the system and from which to com-
pensate the arbitrators. Compared to the costof court
-21-
trials the cost per case is small indeed. Lawyers provide
facilities for the conduct of the hearings at no cost to
the state and the rate of compensation for the arbitrators
is typically very modest. Indeed, the success of compulsory
arbitration is due in no small measure to the willingness of
the members of the bar to participate in the program as a
public service.
In the aggregate, however, the funds required are not
de minimis, particularly when provision must be made for
processing literally thousands of cases annually in a single
county. Accordingly, we recognize the need for an effective
program to inform legislators of the value of arbitration
programs and the need to provide adequate fiscal support.
Here, once again, the active participation of state and
local bar associations can be of significance and their
active participation should be encouraged.
2. Increased use of commercial arbitration by contractual
provision.
Whenever contracting parties agree in advance in a contract
for arbitration of any disputes which may later arise, the
probability of resort to a law suit is reduced. Although
12/
such provisions are not uncommon,
courts continue to be
obliged to litigate large numbers of cases which might
more profitably be arbitrated.
-22-
Repetitive litigation among members of the same industry,
such as disputes among insurance companies, might more
frequently be resolved by arbitration to the benefit of all
13/
concerned.
By developing a pattern including an agree-
ment to arbitrate in specified categories of cases, much
14
could be achieved.
Such categories would include areas in which there is a
substantial volume of repetitive litigation, in which the
primary impact of the disposition of disputes will be felt
within a particular industry, in which the expertise of
arbitrators knowledgeable about the customs and practices
of the particular industry would be helpful, and, normally,
in which the relationship of the parties depends on a written
contract. Specifically, contractual provisions for arbitra-
tion may profitably be adopted with respect to disputes
between franchisors and franchisees, and between contractors
and sub-contractors in the construction industry, in addi-
tion to disputes among insurance carriers previously mentioned.
We recommend a program of education which would invite the
attention of all concerned to the advantages of non-judicial
dispute resolution. The ABA should take the initiative in
developing and implementing such a program on a national
level.
-23-
In this connection, it is significant that the American
Arbitration Association and the American Bar Association
have been cooperating on a number of projects. A joint
effort in this area would be appropriate. Such an effort
should not be limited to education and persuasion. It is
also desirable to identify other categories of agreements
appropriate for arbitration. In addition, it may be
desirable to recommend revision of court rules or statutory
provisions concerning the effect of arbitration and the
bases of appeal from awards.
In short, we recommend a continuing cooperative program
of study, of monitoring the operation of the program, and
of education designed to assure widespread implementation and
use.
FORD
LIBRARY
-24-
D. Administrative Agencies; "Sunset Laws"
It was suggested at Saint Paul that increased resort to
administrative agencies might serve to relieve the courts
of disputes which they are currently obligated to resolve.
We recommend that the Section on Administrative Law consider
the feasibility and desirability of this suggestion. Any
specific proposals will, of course, require careful analysis.
Moreover, basic changes in procedure of the type here pro-
posed frequently have substantive implications. For this
reason specific recommendations should, in accordance with
usual practice, be made in coordination with all interested
Sections.
There is another side of the coin. Proliferation of
administrative agencies with no thought given to elimina-
ting those which no longer perform a useful function is
wasteful, imposing burdens on affected citizens without
commensurate benefit to society. Repeal of legislation
creating such boards and agencies is rare, for it requires
the exercise of initiative by some interested party. It
has long been suggested that agencies be required to justify
15/
their continued existence from time to time.
The so-
called "sunset laws," which provide for the automatic
termination of administrative agencies after a specified
-25--
period of time, unless the legislature acts affirmatively
to continue them, are intended to force such justification
and evaluation. Colorado has provided a model which deserves
16/
consideration in other jurisdictions.
The subject is
one which should command the attention of the Section on
Administrative Law, but it is also one which is of interest
to members of other professions, to the business community
and to consumers. It is one concerning which non-lawyers
have much to contribute. For this reason we recommend that
the American Bar Association establish a special commission,
composed of lawyers and non-lawyers, to study the "sunset
laws" and relatedplans with a view to making legislative
recommendations.
Present provisions for judicial review of administrative
determinations offer the possibility of improvement, at
least in some instances. The usual pattern presently pre-
vailing in the federal system provides for a single appeal
17
as of right.
Under some statutes, however, two appeals
as of right are allowed, to the District Court and there-
after to the Court of Appeals. The Social Security Act has
been cited as one example of unnecessary proliferation of
18
appeals.
Fashioning specific remedies requires careful
consideration of the volume of litigation, reversal rates
-26-
and the nature of the questions presented at the various
19
levels of appeal.
The right of every claimant to a day
in court, with adequate representation to make it meaningful,
would, of course, still be assured.
We recommend that the Section on Administrative Law review
all instances of multiple appeals as of right with a view to
assessing their justifiability in each situation and to
proposing remedial legislation where necessary.
-27-
FOOTNOTES TO CHAPTER I. NEW MECHANISMS FOR
THE DELIVERY OF JUSTICE
1. The title is taken from Sander, Varieties of Dispute
Processing, National Conference on the Causes of Pop-
ular Dissatisfaction with the Administration of
Justice, 70 F.R.D. 111 (1976).
2. Professor Sander has pointed out that possible reforms
aimed at reducing the number of disputes include
changes in the substantive law, such as decriminalization
of some activities or the adoption of no-fault pro-
visions, where appropriate; reducing court discretion
by statute in certain areas, such as in the division
of marital property; and greater emphasis on "preventive
law." Sander, supra note 1, at 112.
3. Id. at 131.
4. Id. at 119.
5. The right of appeal is conditioned upon payment of a
non-recoverable sum as costs, providing a deterrent.
The threshold question, of course, is whether this
results in the denial of the right to trial by jury.
That right has been held to be satisfied by the right
of appeal de novo, Application of Smith, 381 Pa. 223,
112 A. 2d 625 (1955), which states at 381 Pa. 230-231,
112 A. 2d at 629, "The only purpose of the constitutional
provision is to secure the right of trial by jury before
rights of person or property are finally determined.
All that is required is that the right of appeal for
the purpose of presenting the issue to a jury must not
be burdened by the imposition of onerous conditions,
restrictions or regulations which would make the right
practically unavailable." (emphasis in orginal).
6. Pa. Stat. Ann. tit. 5 §21 et seq. (1963).
7. In Ohio a Rule of the Supreme Court authorized the
trial court of any county to establish a mandatory
arbitration rule. The favorable experience with
mandatory arbitration in Hamilton County (Cincinnati)
and Cuyahoga County (Cleveland) is discussed at some
length by Chief Justice C. William O'Neill in an
address delivered before the Fifth Circuit Judicial
Conference in Houston, Texas, May 26, 1976.
-28-
8. 22 N. Y. Codes, Rules, and Regulations, Part 28 (1974).
9. Prof. Maurice Rosenberg and Myra Schubin, Esq., writing
in 1961, observed that the adoption of compulsory
arbitration of claims in the Municipal Court of
Philadelphia up to $2000 had impressive results; "In
one sweep the major part of the court's civil
jurisdiction was diverted to arbitration panels; in
less than two years delay fell sharply from between
twenty-four and thirty months to between three and
five months." Rosenberg and Schubin, Trial by
Lawyer: Compulsory Arbitration of Small Claims in
Pennsylvania, 74 Harv. L. Rev. 448, 458 (1961)
See also O'Neill, supra note 3, at 9 discussing the
Ohio experience, together with accompanying data.
10. Compulsory arbitration procedures may prove beneficial
to federal courts in relieving them of relatively
small claims which arise under federal statutes such
as The Truth-In-Lending Act.
11. The provisions of existing compulsory arbitration
statutes are by no means identical. Details of the
program mandated under these statutes may vary widely
with respect to such features as the size of the claims
diverted into arbitration and the availability of
particular procedures.
12. Sander, supra note 1, at 116.
13. See, for example, Security Mutual Casualty Ins. Co.
V. Century Casualty Co., 531 F. 2d 974 (10th Cir. 1976),
238 N.W. 2d 862 (Minn. 1976).
14. Of course, a great deal has already been accomplished
to this end. See, Coulson, Arbitration -- Positive
Experiments in Modern Justice, 50 Judicature No. 4
(Dec. 1966).
-29-
15. As Chief Justice Burger observed in his keynote
address: "My colleagues, Justices Black and Douglas -
not in jest but in complete seriousness - said many
years ago that new regulatory agencies and new govern-
ment programs should be dismantled after a fixed
period - ten years or so - and not reinstated unless
a compelling need were shown." Burger, Agenda for
2000 A.D.- - A Need For Systematic Anticipation,
National Conference on the Causes of Popular
Dissatisfaction with the Administration of Justice,
70 F.R.D. 83, 89 (1976).
16. Colo. Rev. Stat. Ann. $24-34-104, effective
July 1, 1976. This bill was introduced in the
Colorado House of Representatives as H.R. 1088.
17. See generally, Currie and Goodman, Judicial
Review of Agency Action: The Quest for an
Optimum Forum, 75 Colum. L. Rev. 1 (1975).
18. Id. at 23 et seq.
The Longshoremen's and Harbor Workers'
Compensation Act previously provided for two
tiers of review, but was amended to provide for
appeal directly to the Courts of Appeals (33 U.S.C.
$921 (Supp. II, 1972). See Currie and Goodman,
supra note 17 at 36-37.
19. See generally, Currie and Goodman, supra note 17.
-30-
II ELIMINATING THE NEED FOR JUDICIAL ACTION
A. Changes in the Substantive Law
1. Decriminalization
The desirability of decriminalization of what are
frequently termed "victimless" crimes such as public
drunkenness has been vigorously supported and equally
vigorously opposed. We recommend that the Conference of
Chief Justices be invited to consider whether the subject
should be referred to appropriate state agencies for study
and possible action. In addition, state and local bar
associations should be invited to consider and evaluate
proposals in this area. It should be noted that it is not
necessary to accord like treatment to social problems as
diverse as drunkenness and prostitution, although both are
frequently lumped under the rubric of "victimless crime."
2. Professional Malpractice
A number of statutes relating to medical malprac-
tice have recently been enacted; most are procedural in
nature. Proposals which would limit the right of recovery
in medical malpractice, and in professional malpractice
generally, have been urged as appropriate next steps. These
are matters which are primarily for the states and we thèrefore
recommend that the Conference of Chief Justices be invited to
consider whether this subject, too, should be referred to ap-
-31-
propriate state agencies for study and possible action.
If the ABA is to make any recommendation in this area,
the matter should first be considered by interested
sections.
3. No-Fault Provisions as an Alternative to Actions
Based on Negligence.
The history of ABA concern with no-fault proposals,
and ABA support of state no-fault statutes, is familiar.
It is appropriate that the subject remain on the agenda of
the Association and that the ABA monitor experiences with
no-fault systems where they have been adopted. The po-
tential for major benefits from the no-fault approach is too
significant for the ABA to fail to remain concerned with this
subject.
4. Simplification
Simplified laws and simplified procedures serve to
reduce costs and thus serve the public interest. Needless
complexity in the substantive law serves to invite litigation;
procedures which are needlessly complex are wasteful.
In the effort to simplify, however, we must be mindful
not to eliminate the rights and procedures granted to the less
powerful and less affluent members of our society, in order to
assure them equal justice.
-32-
The law governing transmission of property at death
has long been singled out as an example of needless com-
plexity. We note, however, that substantial progress has
been made in many states, thanks in large measure to the
Uniform Probate Code. In general, it may be observed, the
work of the Commissioners on Uniform State Laws has been an
important influence.
These are matters best considered by the individual
sections in the course of their continuing concern for
improvement of the law.
B. Elimination of the Use of Courts in Non-Adverserial
Proceedings
Judicial resources are never available in over-
abundance and they should be reserved for the resolution of
controversies and the vindication of rights. Much time is
consumed in some courts as a result of judicial involvement
in uncontested probate, uncontested divorce, incorporating
membership corporations, approving changes of name and, in
some cases, making appointments to semi-public offices. It
is certainly an appropriate judicial function to assure that
absent interests are in fact represented when important rights
might otherwise be lost, but courts should not be quick to
-33-
assume that conflicts exist when in fact there are none.
Thus, there is much to commend the proposal that the courts
be freed from the obligation to act in situations inap-
propriate for judicial action, limiting judicial involvement
to cases in which a controversy between adversaries has
developed.
The issues are frequently subtle and complex. It may,
or it may not, be desirable to develop new procedures for
approval of child custody and adoptions where these are not
contested. Again, the work of the Commissioners on Uniform
State Laws can be helpful.
We recommend that the matter be referred to the Con-
ference of Chief Justices for such further reference as they
may deem appropriate. We further recommend that the attention
of state and local bar associations, and of the interested
sections of the ABA, be invited to this problem.
-34-
III. CRIMINAL PROCEDURE
The public expects the criminal justice system -- referred
to in some countries as a social defense system -- to be
effective in reducing crime and affording protection to the
community and to be fair in the process. Our system of
criminal justice, however, is not viewed as effective. Crime
and the fear of crime have become two of the society's most
deeply disturbing problems. There is profound dissatisfac-
tion with the operation of the criminal law, both on the
part of those who consider judicial processes too slow and
the judges too lenient and on the part of those who consider
sentences too harsh, our correctional institutions ineffective
and the system, generally, one which oppresses the poor and is
manipulated by the rich.
Understandably, much of the Pound
Conference was devoted to the criminal justice system.
Recommendations for change concerned virtually every
phase of the system from arrest through appeal. They varied
in nature and purpose, reflecting in some instances opposing
points of view. The abbreviated roster of proposals which
follows serves to illustrate the range of concerns expressed
at Saint Paul and the willingness of at least some of the
participants to experiment with procedures fundamentally at
variance with present practice.
FORD
LIBRAKE
-35-
Elimination of the professional bondsman was urged as
3
an important step in bail reform.
Control of prosecutorial
discretion was considered desirable, perhaps by the develop-
ment of standards which would serve as a guide in
4
individual cases.
Effective pre-trial discovery was urged
and the desirability of an omnibus procedure considered.
Trial procedures came under scrutiny; understandably, it
was urged that we develop procedures which are prompt and
fair and which consider the interests of victims, jurors and
6
witnesses while yet safeguarding individual rights.
Assuring
competence of counsel was accorded a high priority.
Reform of sentencing practices was a subject which received
some emphasis, with particular concern for the need to reduce
8/
disparity in sentencing.
To that end proposals were discussed
recommending that sentencing guidelines be established and
that judges be required to assign reasons for the sentences
which they impose.
The need to improve our correctional institutions was
stressed; the creation of in-prison procedures to deal with
prisoner complaints was urged as a means of achieving
internal prison reforms and reducing the workload of courts.
Present patterns of post-conviction remedies, involving
repetitive collateral attacks and multiple appeals, were
-36-
10
severely criticized.
Specific proposals included provision
11/
for a single post-conviction hearing,
speedier review and
the imposition of a requirement of a colorable claim of
12/
innocence as a prerequisite to collateral attack.
More fundamental changes, with potential impact on an
entire range of present procedures, were urged. The ex-
clusionary rule was attacked and its efficacy as a deterrent
13
/
to illegal activity by police officers challenged.
The
Miranda rule was also criticized, with a proposal for in-
custody interrogation before a judicial officer offered as
14/
an alternative.
It bears emphasis that the proponents of
these changes were not suggesting that illegal activity by
law enforcement officials should be condoned. On the contrary,
they called for increased effort to discover alternative de-
terrents to illegality that would prove more effective than
the challenged procedures in achieving their basic purpose
as well as less obstructive in the enforcement of the
15
criminal law.
These, then, were some of the major proposals presented
at Saint Paul -- innovative, creative and in many respects
controversial.
The American Bar Association has, of course, been actively
involvedin attempting to improve the administration of crimi-
nal justice in recent years. The ABA-sponsored studies may,
-37-
with justification, be termed monumental. The ABA Standards
for Criminal Justice were the result of a decade of intensive
16
effort
and the Section of Criminal Justice has mounted a
17/
nationwide program seeking their implementation in every state.
Certainly the continuation of these efforts must remain of
primary concern.
This is an area of the law, however, which is hardly static;
change comes quickly and is far-reaching in impact. Thus, in
a Supreme Court opinion announced earlier this month the
scope of federal collateral attack on state convictions was
18,
sharply curtailed,
and on the same day the Court took oc-
casion to question the deterrent effect of the exclusionary
19
rule.
Again, there is no suggestion that illegal practices
be condoned; the concern is for procedures which protect
the interests of society while assuring fairness to defendants.
These developments require, therefore, that the quest for other
practicable, effective deterrents to illegal search and
seizures by law enforcement officers be accorded a high
priority. Accordingly, we recommend that the matter be
referred to the Section of Criminal Justice, confident that
vigorous efforts by that Section will assure continued ABA
leadership in this field.
The National Conference of State Trial Judges has an
obvious interest and its members possess rich experience
-38-
relevant to these issues. We recommend that they, too, be
invited to contribute to the solution of these pressing
problems.
-39-
FOOTNOTES TO CHAPTER III: CRIMINAL PROCEDURE
1.
Rubin, How Can We Improve Judicial Treatment of
Individual Cases Without Sacrificing Individual
Rights: The Problems of the Criminal Law.
National Conference on the Cases of Popular
Dissatisfaction with the Administration of Justice,
70 F.R.D. 176, 178 (1976). See also, National
Advisory Commission on Criminal Justice Standards
and Goals, Report on Courts, 1, (1973), [hereinafter
National Advisory Commission Report] where it is
observed, "While all components of the [criminal
justice] system have been criticized, it is becoming
apparent that, as the Nation's crime - consciousness
grows, the role of the courts in crime control is
becoming the center of controvery."
2.
See Rubin, supra note 1.
3.
Rubin, supra note 1, at 183. See also National
Advisory Commission Report, supra note 1, Standard
4.6.
4.
A related issue, the desirability of plea bargaining,
provoked controversy. Compare the discussion in Rubin,
supra note 1, at 183-186 with Schaeffer, Is the Adversary
System Working In Optimal Fashion? at 159, 174-175.
5. Rubin, supra note 1 at 188; see also National Advisory
Commission Report, supra note 1, Standard 4.9 and
commentary thereto.
6.
See Higginbotham, The Priority of Human Rights in Court Reform,
National Conference on the Causes of Popular Dissatisfaction
with the Administration of Justice, 70 F.R.D. 134, 151-154;
Rubin, supra note 1, 178, 193. See also Burger, Agenda
For 2000 A.D. - A Need for Systematic Anticipation, id. at
83, 92: "Inordinate delay in criminal trials and our
propensity for multiple trials and appeals shock lawyers,
judges and social scientists of other countries."
-40-
7.
Rubin, supra note 1, at 188; see also National Advisory
Commission Report, supra note 1, Standards 12.15 and 13.16
and accompanying Commentary, advocating specialized training
for prosecutors, defenders and their assistants with a view
toward assuring maximum effectiveness of counsel in criminal
trials.
8.
See Schaefer, supra note 3, 173-174; Rubin, supra note 1,
193-196; National Advisory Commission Report, supra note 1,
at 109.
9.
Rubin, supra note 1, at 195; see also Schaefer, supra note 3,
173-174. Appellate review of sentencing was also considered,
with Rubin noting, "Although a majority of judges oppose
appellate review, the United States is the only democratic
nation that does not have it." Rubin, supra, at 195; see
also Schaefer, supra, at 173.
10. Rubin, supra note 1, 196-197. Schaefer, supra note 3,
170-171. It was also suggested that the problem was one
that "must be solved by the courts themselves." Walsh,
Improvements in the Judicial System: A Summary and Overview,
National Conference on the Causes of Popular Dissatisfaction
with the Administration of Justice, 70 F.R.D. 223, 227 (1976).
11. Rubin, supra note 1, at 198.
12. Schaefer, supra note 3, at 171, citing, Friendly, Is Innocence
Relevant? Collateral Attack on Criminal Judgments, 38 U. Chi.
L. Rev. 142 (1970).
13. Schaefer, supra note 3, at 171.
14. Schaefer, supra note 3, at 166. In his discussion of this
proposal, id., 166-170, Justice Schaefer notes that Dean
Pound had advocated a 'legal mode of interrogation of suspects
taken into custody' as early as 1907. Id. at 166 quoting
Proceedings, Am. Pol. Sci. Ass'n. (1907), reprinted in Roscoe
Pound and Criminal Justice 100 (S. Glueck, Ed. 1965).
15. Schaefer, supra note 3, at 172.
-41-
16. Erickson, the ABA Standards for Criminal Justice App. -3,
reprinted from Criminal Defense Techniques (Cipes &
Bernstein eds. Release No. 10, July 1975), (distributed
by ABA Section of Criminal Justice.)
The National Advisory Commission on Standards and Goals
for Criminal Justice, funded by LEAA, meanwhile produced
six volumes of standards and goals, which were in substantial
agreement with the ABA Standards in those areas covered by
both. The House of Delegates also endorsed these standards
and goals to the extent not inconsistent with the ABA
Standards.
17. Id. App. A-4-8.
18. Stone V. Powell, 44 U.S.L.W. 5313 (U.S. July 6, 1976), holding,
"that where the state has provided an opportunity for full
and fair litigation of a Fourth Amendment claim, the
Constitution does not require that a state prisoner be granted
federal habeas corpus relief on the ground that evidence
obtained in an unconstitutional search or seizure was
introduced at his trial." 44 U.S.L.W. 5317.
19. U.S. V. Janis, 44 U.S.L.W. 5303, 5308-5310, text at notes
19-29 and authorities cited (U.S. July 6, 1976).
-42-
IV. CIVIL PROCEDURE
A. Correcting Abuses in the Use of Discovery
Substantial criticism has been levelled at the oper-
ation of the rules of discovery. It is alleged that abuse
is widespread, serving to escalate the cost of litigation,
to delay adjudication unduly and to coerce unfair settlements.
Ordeal by pretrail procedures, it has been said, awaits the
parties to a civil law suit.
Much of the criticism has focused on the role of the
trial judge. It has been urged that the fair and orderly
operation of the rules should be a prime and personal respon-
sibility of the trial judge. It has been further suggested
that abuse cannot be eliminated unless the judge insists on
defining the issues before extensive discovery is permitted.
Others have urged that, in the federal system at least,
magistrates should monitor the process and be admonished not
to allow unrestricted and expensive discovery unrelated to
the actual needs of the litigants.
Certainly, abuse of the processes of discovery on any
widespread scale must be a matter of prime concern. Fashioning
appropriate remedies, remedies which will neither impose
undue burdens on the courts nor prove unfair to litigants with
genuine need for extensive discovery, is, however, a complex
task.
-43-
Empirical data concerning the types of cases in which abuse
is most likely to occur, the nature and extent of the abuse,
and the utility of remedies which have been tried may prove
helpful
Happily, the Section on Litigation already has
the subject under study. The National Conference of State
Trial Judges and the Division of Judicial Administration may
be expected to provide additional perspectives which would
aid in developing practicable and equitable solutions. A
common effort by these three bodies would have many advan-
tages. It would assure the active participation of those
best able to contribute to prompt and effective resolution
of these difficult questions. Accordingly, we recommend that
consideration be given to such a joint program.
At the least, the Section on Litigation, in coordination
with the Division of Judicial Administration, should accord
a high priority to the problem of abuses in the use of pre-
trial procedures and report its findings and recommendations
with a view to appropriate action by state and federal
courts.
B. The Use of Sanctions
Imposition of sanctions in the course of civil litigation
is a familiar penalty which may be imposed for failure to
-44-
comply with judicial orders, 4 willful violation of an
obligation imposed by procedural rules, 5/ or even in some
6
circumstances for failure to respond to a request to admit.
Such sanctions may run the gamut from an order to pay reason-
able expenses, including attorney's fees, incurred by an
adversary in proving a single fact 7 to punishment for con-
tempt in the extreme case
Reasonable sanctions imposed to assure compliance with
reasonable procedures are appropriate and necessary to pre-
vent abuses. 9 It is right to insist that an attorney's
signature on a pleading certifies that to the best of his
knowledge there is good ground to support its averment and
that it is not interposed for delay. 10/ Where inadequate and
improper pleadings give evidence of contributing to delay and
increased expense of litigation, 11/ it is desirable to assure
that procedural rules specifically provide that an attorney's
signature carries with it such a certification and that
sanctions may be imposed for willful violation. Moreover, it
is important that judges enforce the rules. We recommend that
the Section on Litigation study the problem of enforcement and
made recommendations appropriate for state and federal courts.
The taxing of costs can be, and in some places has been
used far more creatively. The risk of being taxed with the
-45-
expenses incurred by an opposing party has been considered
a useful deterrent to needless extension of litigation.
Similarly, it has been used to avoid resort to trial where
trial is unnecessary. What has been termed the Michigan
mediation system, for example, has proved useful in reducing
the number of unnecessary trials: lla/ Under the terms of the
governing provisions, cases in which liability is realistically
not in issue can be referred for evaluation to an impartial
panel. The findings of the panel are not binding, but, if
rejected by a litigant who then fails to achieve a substantially
more favorable result at trial, they subject the litigant to
the imposition of the costs of litigation. It is important
to emphasize that these mechanisms are designed to apply equally
to all parties to a lawsuit.
In our view, such creative use of sanctions offers a
significant potential for increased efficiency to the benefit
of the litigants immediately involved and to the ultimate
benefit of all who depend on the availability of an efficient
judicial system. We recommend that the Section on Litigation
evaluate programs designed to this end, and encourage experi-
mentation and implementation of those programs which have
proved successful.
-46-
C. CLASS ACTIONS
Glass actions have been in use for well over a hundred
years and have proved themselves a valuable tool. A little
more than a dozen years ago the Federal Rules governing class
actions were changed substantially, use of the class action
became far more widespread, its impact on litigants far more
significant, and the governing rules and doctrine highly con-
troversial. It is certainly true that few procedural devices
have been the subject of more widespread criticism and more
sustained attack -- and equally spirited defense. The dis-
satisfaction, however, does not encompass all kinds of class
actions; it focuses on litigation under Federal Rule of Civil
Procedure 23 (b) (3) and its state counterparts, which permit
suits on the part of persons whose only connection is that one
or more common issues characterize their position in relation
to an adverse party.
The sheer magnitude of many of these suits, in some instances
involving literally hundreds of thousands of claimants and an
equally imposing number of documents, has been said by some
critics to result in litigation so complex as to beyond the power
12/
of judicial tribunals to adjudicate on any rational basis
-47-
The use of the jury in such cases has been condemned with
particular vigor, resulting in judicial speculation as to
whether jury trial should be denied even when requested by
both sides
13
There are those, however, who vigorously resist any attempt
to contract the sweep and scope of class actions. The Supreme
Court's holding in Eisen concerning notice to the individual
members of the class drew substantial fire for unduly re-
stricting the utility of the Federal Rule 14, By the same token,
the Court's holdings relating to jurisdictional amount in 23 (b)
(3) class actions has been condemned in language which reflects
the intensity of feeling which these problems of practice and
procedure evoke
15,
The unseemly picture of the lawyer frequently as the real
party in interest, representing vast numbers of plaintiffs no
one of whom has substantial interest in the recovery, has been
a cause of concern16/ The size of counsel fees in such litigation
led one panelist at Saint Paul to characterize litigation as a
new "growth industry. 11/
More importantly, the order of magnitude of the potential
liability in many treble damage cases and other 23 (b) (3)
actions and the sheer expense of defending, have been said to coerce
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settlements unrelated to the merits of the claim, thus re-
sulting in what has been called a "de facto" deprivation of
defendants' "constitutional right to a trial. " 18
A number of specific proposals for change were considered
in some detail at the Pound Conference. Elimination both of
claims which are de minimis and of cases "too big for ad-
judication," -- either because of too many parties, too many
witnesses, or an excessive diversity of issues -- was suggested.
The major problems could be solved, it was urged, by a require-
ment that members of a class who desire to litigate take some
affirmative step to "opt in", replacing the current practice
under which they are considered litigants if they fail to
"opt out. 11 19
It would be wrong to leave the impression that the debate
over class actions is limited to the federal forum. On the
contrary, developments in the law applied in federal courts
have served to heighten interest in state provisions. Recently
enacted statutes in New York 20/ and in California 21/ depart
significantly from the federal pattern, as does the Fifth Ten-
tative Draft of a Uniform Class Actions Act presently before
the Commissioners on Uniform State Laws.
The impact of the class action on producers and consumers
22,
alike
and the diversity of viewpoints concerning the nature
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of the problems and the preferred solutions, make it clear
that the subject must remain of primary concern. Moreover,
substantive considerations of major significance are involved.
The 1974 amendment to the Truth in Lending Act limits recovery
in a class action under that statute to $100,000 or one percent
of the net worth of the creditor, whichever is less, 23 / a
formula which amply illustrates that, once again, the substantive
law may be developing in the interstices of procedure.
We have already noted the active interest of the Commis-
sioners on Uniform State Laws in this area; there is reason to
believe that the appropriate committees of the Judicial Con-
ference of the United States will consider whether changes in
the Federal Rule are desirable. We note, as particularly worthy
of study, the possibility of an added measure of judicial control
over attorney fees in class actions, 24 and the substitution of
"opt in" provisions for the present "opt out" rule. 24a Further,
we urge all concerned sections of the ABA to accord a high
priority to class actions with a view to assessing proposals
put forth by others and, of equal importance, with a view to
initiating recommendations for change both with respect to pro-
cedures and to the substantive law.
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D. THE JURY
1. The Right to Jury Trial
Trial by jury has long been the subject of debate, "at-
tracting at once the most extravagant praise and the harshest
criticism. " 25/ It is significant, as the Commentary to the
ABA Standards Relating to Trial Procedures observes, that
"American trial court procedure remains unique in the breadth
of the jury trial guaranty it affords and the generality with
which juries are used. " 26/ The of
use juries in civil cases
was the subject of trenchant criticism at Saint Paul, where it
was described as the cause of much of the current dissatisfaction
with the adversary system 27/ Of course, there were many who
reaffirmed their commitment to the civil jury and those who
expressed the view that the issue "must be addressed with all
the cautions that we exercise in dealing with that which has
been regarded as a fundamental part of our system. " 28/
Whatever the division of opinion concerning the desirability
of reducing or eliminating the scope of the right to jury trial
in civil cases, there would seem to be rather widespread agree-
ment that the right should not be extended. The fact, is, however,
that there has been a substantial extension of the right to jury
trial in the federal system over the past few decades.
29/
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The reasons for the expansion, rooted in the Supreme Court's
view of the implications of the merger of law and equity,
need not be detailed here. The subject clearly appears ripe
for reexamination. It may also be appropriate to reexamine
the application of doctrines governing right to jury trial in
the cases of new causes of action created by statutes of a
type unknown to the common law 31 /
It should be noted that complaints with respect to the
civil jury have been focussed particularly on cases which are
complex and difficult. 32 Long ago, equity felt free to assert
jurisdiction in such cases and thus preclude jury trial;
accounting in equity is a familiar example. This subject, too,
is ripe for reexamination.
We recommend that the American Bar Foundation, the Insti-
tute of Judicial Administration, the Federal Judicial Center,
or some other appropriate organization, be invited to undertake
a thorough study of the proper scope of the right to jury trial
in civil cases and to make recommendations concerning any
changes in present practices which may be desirable.
2. Jury Trial Procedures
The procedures presently employed in jury trials can be
improved substantially. As the Chief Justice observed in his
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keynote address in Saint Paul, there is reason to doubt
"whether the jury selection process, which is provided as
a means to insure fair, impartial jurors, should be used as
a means to select a favorable jury. " 33/ It is hardly in the
public interest to afford the parties on either side the
opportunity to select a jury biased in their favor. The ABA
Standards Relating to Trial Courts include recommended pro-
cedures designed to achieve both efficiency and impartiality. 34/
They deserve implementation.
Frequently too little attention is paid to the price in
needless discomfort and boredom and sheer indignity that
thoughtless practices exact from citizens called for jury
duty. It is familiar knowledge that too many jurors react
negatively to the whole system of justice as a result of their
own experiences. Various proposals relating to efficient
utilization of jurors deserve consideration. Continued exper-
imentation is certainly to be commended.
We recommend that the ABA Standards Relating to Trial
Courts be referred to the Conference of Chief Justices and to
the Judicial Conference of the United States with a view to
correcting abuses in this area wherever such abuses exist.
Aside from amenities, attitudes and sheer waste, the actual
functioning of juries can be improved.
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Increased use of interrogatories and special verdicts,
and better communication of instructions to the jury, perhaps
by use of a videotaped charge, are two further examples of
suggested improvements in the use of juries. Other examples
may also be suggested. We recommend that the Section on
Litigation consider suggested new techniques, or more wide-
spread use of existing techniques, with a view to appropriate
recommendations.
E. SPECIAL PROBLEMS OF FEDERAL JURISDICTION
Elimination of diversity jurisdiction, or at least denying
such jurisdiction at the option of a citizen of a forum state,
has long been espoused. 35 The high quality of justice dis-
pensed in state courts makes resort to removal to the federal
courts unnecessary; moreover, today parochialism is hardly
the problem it once was, if it can be said to be a problem at
all. The change would have little impact on the total volume
of litigation in state systems, but would provide significant
relief to the federal courts. 36/ We recommend that the Conference
of Chief Justices and state and local bar associations be in-
vited to consider this improvement with a view to endorsement.
Such endorsement, we are confident, would go far toward assuring
favorable action by the Congress.
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Legislation passed by the Senate and pending in the
House would eliminate three-judge courts and direct appeals,
with reasonable exceptions 37/ The ABA, acting through the
Section on Judicial Administration and through the Committee
on Coordination of Judicial Improvements, should actively
support the legislation and seek to have it enacted into law.
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FOOTNOTES TO CHAPTER IV: CIVIL PROCEDURE
1.
Rifkind, Are We Asking Too Much of Our Courts? National
Conference on the Causes of Popular Dissatisfaction with
the Administration of Justice, 70 F.R.D. 96, 107 (1976)
Kirkham, Complex Civil Litigation - Have Good Intentions
Gone Awry?,, National Conference on the Causes of Popular
Dissatisfaction with the Administration of Justice, 70
F.R.D. 199, 202-204 (1976).
Expressing concern regarding complaints that pretrial
procedures are abused, the Chief Justice commented that
he had asked the appropriate committees of the Judicial
Conference of the United States to conduct hearings,
"on any proposals the legal profession considers appropriate. "
Burger, Agenda for 2000 A.D. - A Need for Systematic
Anticipation, National Conference on the Causes of Popular
Dissatisfaction with the Administration of Justice, 70 F.R.D.
83, 96 (1976).
2.
Kirkham, supra note 1 at 204, Rifkind, supra note 1 at 107.
Judge Rifkind also added, "I believe it is fair to say that
currently the power for the most massive invasion into
private papers and private information is available to
anyone willing to take the trouble to file a civil complaint.
A foreigner watching the discovery proceedings in a civil
suit would never suspect that this country has a highly-
prized tradition of privacy enshrined in the Fourth Amendment."
3.
The value of empirical research in considering amendments to
the Federal Rules of Civil Procedure has been recognized by
the Advisory Committee in the past. See A Field Study of
Discovery Practice, Advisory Committee's Explanatory
Statement concerning Amendments of the Discovery Rules
accompanying the 1970 Amendments to F.R.C.P. 26-37.
4. See, e.g. Fed. R. Civ. P. 37 (b) (1).
5. See, e.g. Fed. R. Civ. P. 11.
6.
Fed. R. Civ. P. 37 (c).
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7. Id. Attorney's fees, of course, have varied purposes.
They are often intended to make a party whole. They
are included in many statutes to serve as an incentive
to bringing suit.
8.
Fed. R. Civ. P. 37 (b) (2) (d).
9.
Sanctions must, of course, be determined
pursuant to law and in accordance with
established procedures. See Link V. Wabash
R. Co., 370 U.S. 626, 82 S. Ct. 1386, 8 L.
Ed. 2d 734 (1962).
10.
Fed. R. Civ. P. 11.
11. Commenting on the extent of abuse of liberalized
pleading requirements, Judge Rifkind observed:
"Many actions are instituted on the basis of a
hope that discovery will reveal a claim." Rifkind,
Are We Asking Too Much of Our Courts? National
Conference on the Causes of Popular Dissatisfaction
with the Administration of Justice, 70 F.R.D. 96,
107 (1976).
11 (a). For a description of The Michigan Mediation System
in Wayne County, Michigan, and for an evaluation
of its operation, see Miller, Mediation in Michigan
56 Judicature 290 (1973). The Mediation System was
established by Michigan General Court Rules and Wayne
County Circuit Court Rules, id. at 290, and periodic
statistical reports are prepared.
12. Kirkham, supra note 1 at 203.
13.
Parsons, J. in Ohio - Sealy Mattress Mfg. Co.
V. Sealy Inc., 71 C 1243 (N.D. Ill., May, 1976)
Transcript of decision rendered orally.
14.
Schuck and Cohen, The Consumer Class Action: An
Endangered Species, 12 San Diego L. Rev. 39 (1974)
Comment, Class Actions and the Need for Legislative
Reappraisal, 50 Notre Dame Lawyer 285 (1974) ; Comment,
The Federal Courts Take a New Look at Class Actions,
27 Baylor L. Rev. 751 (1975).
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15. "Snyder was a disappointment and Zahn a
tragedy to those who view class actions
as a powerful weapon on behalf of the
average citizen. 11 Coiner, Class Actions:
Aggregation of Claims for Federal Jurisdiction
4 Memph. State U.L. Rev. 427, 447 quoted in
Wright and Miller, Federal Practice and
Procedure, Civil $1756 (Supp. 1975)
16.
American College of Trial Lawyers, Report and
Recommendations of the Special Committee on
Rule 23 of the Federal Rules of Civil Procedure,
20-21 (1972).
The potential conflict of interest between the
attorney and the members of the class has also
become the subject of study. See Dam, Class
Actions: Efficiency, Compensation, Deterrence,
and Conflict of Interest, 4 J. Legal Studies 47,
56-61 (1975).
17.
Kirkham, supra note 1 at 204.
18.
Handler, The Shift from Substantive to Procedural
Innovations in Antitrust Suits - the Twenty-Third
Annual Antitrust Review, 71 Colum. L. Rev. 1, 9
(1971).
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19. American College of Trial Lawyers, supra note 16
at 2-3, also contains such a proposal.
See also Miller V. Mackey International, Inc.,
515 F. 2d 241 (5th Cir. 1975) Counsel had sought
court approval of a fee in excess of $130,000; the
District Court awarded only $20,500, and counsel ap-
pealed. The Court of Appeals reversed. Bell, J.,
concurring specially, appeared to invite consideration
of the need for special counsel to represent members
of the class against "their counsel" on the issue of
fees. Noting that "lawyers representing one client
having a claim valued at $587," ended up with "an esti-
mated 1,500 to 2,000 clients unknown to counsel having
claims approximating $700,000," he added: "These un-
known clients have no counsel other than the counsel
here and thus the fees are being awarded in a non-adver-
sary context. They had no representation in the dis-
trict court and they have none here." Id. at 244.
Examining the problem in terms of root causes, Judge
Bell called for a "better system," one which "would be
in the form of an opt-in provision in the class action
rule SO that only those persons would be in the law
suit who choose to remain in and thus allow counsel to
represent them. This would enable a return to the tradi-
tion of the legal profession where clients affirmatively
employ counsel." Finally, Judge Bell suggests that
"pending amendment of the rule, an opt-in procedure
should be used in the discretion of the district court
if it is substantially related to the management of a
class action." Rule 23 (b) (3) (D), "coupled
with the inherent powers of the court to manage litiga-
tion, will be sufficient in some cases to allow a class
action to be maintained only on an opt-in procedure." Id.
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20. N.Y. C.P.L.R. $901 et. seq. (McKinney Supp. 1976)
21. cal. Civ. Code $$1780, 1781 (West 1973)
22. Kirkham, supra at 204, referring to class actions
observe that they are "adding billions of dollars
to the cost of producing consumer goods and services."
23. 15 U.S.C.A. $1640 (a) (Supp. 1976), amending
15 U.S.C.A. $1640 (1974)
24. The courts have already evidenced sensitivity
to the problems raised by large fee awards in
class actions. Flatly characterizing the fees
awarded in the settlement of a class action as
"excessive," the Second Circuit commented:
"For the sake of their own integrity, the
integrity of the legal profession, and the
integrity of Rule 23, it is important that
the courts should avoid awarding 'windfall
fees' and that they should likewise avoid
every appearance of having done so." City
of Detroit V. Grinnell Corp., 495 F.2d 448, 469
(2d Cir., 1974)
See also the concurring opinion of Bell, J.,
in Miller V. Mackey International, Inc., discussed
note 19 supra.
24a. At least one member of the Task Force opposes
substitution of the opthin provision.
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25. Kalven, The Dignity of the Civil Jury, 50 Va. L.
Rev. 1055, 1056 (1964).
26. ABA Commission on Standards of Judicial Administration,
Standards Relating to Trial Courts, Commentary to $2.10
(1975), approved by the House of Delegates 1976.
27. Schaefer, Is the Adversary System Working in Optimal
Fashion? in National Conference on the Causes of
Popular Dissatisfaction with the Administration of
Justice, 70 F.R.D. 159, 160 (1976).
28. Walsh, Improvements in the Judicial System: A Summary
and Overview, National Conference on the Causes of
Popular Dissatisfaction with the Administration of
Justice, 70 F.R.D. 223, 228. (1976). For a thoughtful
discussion of the considerations raised by the proposal
to eliminate juries in civil cases, see id. at 227-228.
29. See, e.g., Redish, Seventh Amendment Right to Jury
Trial: A Study in the Irrationality of Rational Decision
Making, 70 Nw. L. Rev. 486, 501 (1975) "the 'bottom
line' in using the rational approach has invariably been
extension of the right to jury trial to cases where
historically there would have been no such right."
See also F. James, Civil Procedure 377 (1965) : "the
Court makes it clear that the constitutional right to
a jury attaches to those areas wrested from 'the scope
of equity' by 'expansion of adequate legal remedies
provided by the Declaratory Judgment Act and the Federal
Rules.' The present Court, which heavily favors the
jury trial, will no doubt use this flexibility always to
expand jury trial."
30. See Wolfram, The Constitutional History of the Seventh
Amendment, 57 Minn. L. Rev. 639 (1973); Redish, supra
note 5.
31. See, e.g., Frank Irey, Jr., Inc. V. Occupational Safety
and Health Review Comm'n., 519 F.2d 1200 (3d Cir. 1975),
cert. granted, 96 S. Ct. 1458 (1976), discussed in Schaefer,
supra note 2 at 164.
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32. See text at note 3, supra.
33. Burger, Agenda for 2000 A.D. -- A Need for Systematic
Anticipation, in National Conference on the Causes of
Popular Dissatisfaction with the Administration of Jus-
tice, 70 F.R.D. 83, 92 (1976).
34. Section 2.12.
35. Noting that the subject of diversity jurisdiction
"is one to which I have addressed myself on a number
of prior occasions, particularly in reports to the
American Bar Association annual meeting," the Chief
Justice called for abolition of diversity jurisdiction
with the statement that "in the 20th century such
cases have no more place in the federal courts than
the trial of a contested overtime parking ticket!"
Letter of the Chief Justice to Senator Roman L. Hruska,
Chairman, Commission on Revision of the Federal Court
Appellate System, May 29, 1975, 67 F.R.D. 195,
397-398 (1976).
36. Id. at 397, citing the 1969 Study of the American
Law Institute.
37. S. 537, 94th Cong., was passed by the Senate on June 20,
1975. H.R. 6150 is pending in Committee.
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V. ASSURING THE AVAILABILITY OF LEGAL SERVICES
Neighborhood Justice Centers, described earlier in this
report, are designed to make it easier for all citizens to obtain
just resolution of their grievances. The availability of medi-
ation and arbitration will serve the same end. In some cases
simplified procedures will make it possible for the citizen ad-
equately to prosecute his own claim or to establish his own
defense; this has long been a stated goal of small claims courts.
Moreover, the forthcoming Conference on the Resolution of Minor
Disputes may be expected to deal with appropriate ways and means
for the realization of that goal. Nonetheless, it must be rec-
ognized that in many cases substantial claims will be referred
to courts of general jurisdiction with a realistic possibility
that plenary trial will be necessary. In such cases a litigant
not represented by counsel is, realistically speaking, deprived
of his day in court. Adequate legal representation must be
viewed as a prerequisite to the delivery of justice.
In a very fundamental sense, the issue forces us to examine
the precise nature of the commitment of our society, and
especially of our profession, towards those who cannot afford
to retain their own counsel. We have gone far to protect the
indigent criminal defendant; a genuine sensitivity to the need
to provide representation in civil matters involving status,
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such as divorce and custody, is also apparent.
In many cases
the contingent fee assures adequate representation for the
indigent. The full range of the need, however, has not yet
been met. We recognize and applaud the advances already made
towards ensuring access to the judicial system for all; it is
important, however, that we maintain a continuing awareness of
the need for further progress and a continuing commitment to
find and implement the means by which to achieve it.
Canon 2 of the Code of Professional Responsibility has
particular relevance in this context. It provides that "A
lawyer should assist the legal profession in fulfilling its
duty to make legal counsel available. "
On a national level, Congress has already evidenced concern
with these problems; the Legal Services Corporation, has also
shown interest in state and federal programs designed to assure
the availability of legal services to all. This is an area
in which the concern of state and local bar associations can
be particularly productive and efforts should be made to stim-
ulate interest and initiative at the local level.
The American Bar Association has taken significant steps
4
in the effort to assure delivery of justice to all.
We
recommend that the American Bar Association continue in the
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forefront of this effort, and particularly that it maintain
a close liaison with the Congress to assist in the develop-
ment of specific recommendations and to aid in expediting
their implementation. We recommend further that the American
Bar Association invite the attention of state and local bar
associations to the potential for service in this area.
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FOOTNOTES TO. CHAPTER V: ASSURING THE AVAILABILITY OF
LEGAL SERVICES
1. See, e.g., Commentary to American Bar Association
Commission on Standard of Judicial Administration,
Standards Relating to Trial Courts,
Standard 2.20 (1976).
2. See, e.g., May 19, 1976 Hearings of the Subcommittee
on Constitutional Rights of the Senate Committee on the
Judiciary, the most recent in a series on these issues.
3. See Thomas Ehrlich, Causes of Popular Dissatisfaction
with the Administration of Justice: The Perspective of
the Poor, Statement before the Subcommittee on Con-
stitutitional Rights of the Senate Committee on the
Judiciary, May 19, 1976.
4. The ABA Consortium on Legal Services and the Public
includes the following constituent committees:
Standing Committee on Lawyer Referral Service, Standing
Committee on Legal Aid and Indigent Defendants, Standing
Committee on Legal Assistance for Servicemen, Special
Committee on the Delivery of Legal Services, Standing
Committee on Specialization, Special Committee on Pre-
paid Legal Services, Special Committee on Public Interest
Practice, Special Committee to Survey Legal Needs
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VI. JUDGES
Assuring judges of superior quality in adequate numbers has
long been a concern of the Association. A number of specific
recommendations presented at Saint Paul are embodied in the
Standards on Court Organization, which have already been ap-
proved by the House of Delegates. These emphasize the need to
have vacancies filled promptly merit selection²/ and adequate
provision for the tenure³/ and discipline 4 of judges. The im-
portance of a program of continuing education for judges5 also
deserves inclusion in any program concerned with judicial quality.
In the effort to move from precept to practice, the ABA has
established a special committee, chaired by Judge Winslow Christian,
to seek implementation of these standards. Accordingly, we re-
commend that the above proposals be referred to that committee
for action.
An additional proposal, presented at Saint Paul and not in-
cluded in the Standards, is the development of a mechanism de-
signed to assure periodic legislative consideration of the need
for new judgeships. Such a mechanism would regularly supply the
legislature with data concerning workloads and population,
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including both past experience and future projections, a
formula by means of which to utilize the data in determining
the number of judgeships warranted for each court, and a self-
imposed legislative requirement that the legislature vote on
new judgeships within a specified time after the submission
of such data.
We recommend that this proposal be considered by the Division
on Judicial Administration, the Conference of Chief Justices and
by the Judicial Conference of the United States.
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FOOTNOTES TO CHAPTER VI: JUDGES
1. American Bar Association Commission on
Standard of Judicial Administration,
Standards Relating to Court Organization
(1974) Standard 1.21 (b) (ii).
2. Ibid., Standard 1.21 (a).
3. Ibid., Standard 1.21 (b) (iii).
4. Ibid., Standard 1.22.
5. Ibid., Standard 1.25.
6. The Committee to Implement the Standards
Relating to Court Organization. The
jurisdiction of the committee, however,
may soon be broadened.
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VII. COLLECTION AND EVALUATION OF DATA
There was repeated emphasis at the Pound Conference on
the paucity of data available for an adequate understanding
of the reasons for the critical problems of judicial admin-
istration and for informed consideration of the alternatives
to judicial resolution of disputes. Are disputes not
brought to court resolved in some other manner? If so, how?
Are there social and psychological costs involved in not
pressing disputes? If so, what are they? Further, it was
suggested that we do not know, and we need to learn, the
relative speed and cost of different methods of dispute re-
solution. certainly, it is difficult to judge the desir-
ability of increased resort to alternatives without such infor-
mation.
We need to learn more of the operation of the Bail Reform
Act and the Criminal Justice Act We have no reliable data,
it was urged, on the number of crimes committed in this country,
on arrests and dispositions For efficient operation, the
entire system of the administration of justice must be thor-
oughly coordinated and adequately funded. This is difficult,
if not impossible, without adequate data, current and reliable.
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LIBRARY
This is an area concerning which the Task Force con-
siders it appropriate to make its recommendation directly
to the Board of Governors with a view to the earliest pos-
sible implementation.
In our judgement, creation of a Federal Office for the
collection of data, both state and federal, civil and crim-
inal, would be desirable. Such an office might be established
as an adjunct of the Administrative Office of the United
States Courts. It would collect state data reported to it
on a voluntary basis and would be authorized to undertake
special studies relevant to the administration of justice.
This office would work in close cooperation with the National
Center for State Courts, and the Federal Judicial Center, and
with other groups. Indeed, we note that certain state data,
relating to wiretaps, is today reported to the Administrative
Office of the United States Courts.
ABA approval should be made conditional on approval by the
Conference of Chief Justices.
In the long range, it may become appropriate to transfer
some or all of the functions of this office to the National
Institute of Justice, should one be established. Certainly,
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nothing in this proposal is intended to preclude, or to
militate against the establishment of such an Institute.
However, the need for data is too pressing, and the
opportunity for creating a simple, efficient mechanism for
meeting that need too obvious, to postpone action now until
a National Institute is in fact created.
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FOOTNOTES TO CHAPTER VII: COLLECTION AND EVALUATION OF DATA
1. Sander, Varieties of Dispute Processing, National
Conference on the Causes of Popular Dissatisfaction
with the Administration of Justice, 70 F.R.D. 111,
133 (1976).
2. Id.
3. Commenting on these two acts, the Chief Justice said,
"Each of these acts was one that most informed people
would call 'good' legislation. Now, a decade and more
of actual experience shows that the interaction of these
two improvements created vexing problems not anticipated."
Burger, Agenda for 2000 A.D. - A Need for Systematic
Anticipation, National Conference on the Causes of Popular
Dissatisfaction with the Administration of Justice, 70
F.R.D. 83, 90 (1976).
4. Rubin, How Can We Improve Judicial Treatment of Individual
Cases Without Sacrificing Individual Rights: The Problems
of Criminal Law, National Conference on the Causes of
Popular Dissatisfaction with the Administration of Justice.
70 F.R.D. 176, 180-181 (1976).
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