State–Federal Judicial Observer

NEWS AND COMMENTARY OF INTEREST TO THE STATE AND FEDERAL JUDICIARY

A publication of the Federal Judicial Center to further state–federal judicial relations • Number 11 • January 1996

Inside . . .

Diversity Jurisdiction 2

Three Faces of Federalism 2

Chambers Papers 3

Tribal Courts 3

by James G. Apple

The appellate judiciary “at the dawn of a

new century” will be the focus of a threeday meeting of state and federal appellate

judges March 28–31, 1996,

in Washington, D.C.

The symposium is sponsored by the Appellate

Judges Conference of the

American Bar Association

in cooperation with the Federal Judicial Center.

The official title of the

meeting is “The Community of Courts: The

Compleat Appellate Judge.”

Federalism is a primary

topic on the agenda. The

panel for the first session

will discuss “Federalism

and the Courts at the End of the Century:

Taking Stock of Shifting Jurisdictions and

Caseloads.”

The conference is being organized by

Justice Elizabeth B. Lacy (Va. Sup. Ct.) and

Judge Deanell R. Tacha (U.S. 10th Cir.).

Judge Tacha said the meeting represents

an “effort to bring together state and federal

appellate judges to consider the role of the

judge beyond his or her case-deciding role.”

“We are breaking new ground,” she said,

“by going beyond the usual agenda for a

judicial conference of updates on existing

law. We will focus on how we can all work

together to be spokespersons for the broad

principles that underlie our justice system,

such as an independent judiciary and the

rule of law, access to courts, and citizen

confidence in the system. These seem to be

missing from the national dialogue. The

emphasis will be on the role of the judge

beyond the courtroom.”

Judge Tacha noted that the conference

will include non-judges, including

Catherine Crier, ABC News;

Linda Greenhouse, New York

Times; Sam Evans, international

director of the YMCA; Frances

K. Zemans, the American Judicature Society; U.S. Representative Henry J. Hyde (Ill.); and

U.S. Senator Russell D. Feingold

(Wis.). Roberta C. Ramo, president of the American Bar Association, will make a presentation

at a dinner at the U.S. Supreme

Court. The dinner will be hosted

by Associate Justice Stephen

Breyer.

According to Judge Tacha,

the conference will focus on four areas:

• relationships of state and federal courts

in shifting patterns of federalism;

• the three branches of government working together;

• collegiality as a qualitative factor in appellate decision making; and

• judges as civil educators

of citizens about the broad

purposes of the judiciary.

Justice Lacy heads the

symposium’s planning committee, which consists of six

state appellate judges and four

federal appellate judges. She

said that the symposium will

provide state and federal appellate judges a “unique opportunity to meet and exchange ideas” on

these kinds of issues.

“It will provide a forum for learning

from each other about the institutional challenges we all face,” she said. “The format

will be very interactive.”

In addition to plenary sessions, the symposium will include breakout periods where

state and federal judges can exchange ideas

and enter into a dialogue.

The initial first-day session will cover

constitutional issues involved in jurisdictional shifts between federal and state

courts. The faculty for this session will be

Justice Christine Durham (Utah Sup. Ct.),

Judge Patrick E. Higginbotham (U.S. 5th

Cir.), Chief Justice Stanley G. Feldman

(Ariz. Sup. Ct.), Judge Pamela A. Rymer

(U.S. 9th Cir.), and Prof. Francis E.

McGovern of the University of Alabama

Law School.

Appellate advocacy, not for lawyers but

for judges, is the subject of the second

session on the first day. A presentation by

Abner Mikva, former Counsel to the President and former

chief judge of the U.S. Court

of Appeals (D.C. Cir.) will

lead off discussions on “relationships between the three

branches of government—to

what extent should appellate

judges be advocates for the

third branch.” Other panelists

for this session, officially titled

“Shall We Dance?—The Reality of the Judiciary as a CoEqual Branch of Government,” include Justice Shirley

S. Abrahamson (Wis. Sup.

Ct.), Sen. Feingold, Rep. Hyde, Ms. Crier,

Justice Charles Fried (Mass. Sup. Ct.), and

Prof. Stephen Gillers of New York University Law School.

On the second day, Judge Martha Craig

Daughtrey (U.S. 6th Cir.) and Dr. Dale

Lefever (University of Michigan) will lead

morning discussions on “Collegiality: A

Force for Fair and Efficient Justice: A Myth,

A Strength, and a Weakness.”

The final session, “From Chambers to

Community,” will include an address by

Judge Guido Calabresi (U.S. 2d Cir.) and

comments by Justice Ann K. Covington

(Mo. Sup. Ct.), Prof. Gillers, and Judge

Tacha.

A “commencement” featuring a summation of the conference by former University

of Virginia law professor emeritus Daniel J.

Meador and a farewell brunch will be held

on Sunday, March 31.

Members of the planning committee for

the symposium, in addition to Justice Lacy

and Judge Tacha, are Justice Durham, Judge

Higginbotham, Chief Judge Martin M.

Doctoroff (Mich. Ct. App.), Judge Sarah D.

Grant (Ariz. Ct. App.), Justice Carl W.

Anderson (Cal. Ct. App.), Justice Leah J.

Sears-Collins (Ga. Sup. Ct.), Judge Betty

B. Fletcher (U.S. 9th Cir.), and Judge

Diarmuid F. O’Scannlain (U.S. 9th Cir.).

The symposium will be funded in part by

a grant from the State Justice Institute.

Further information about and registration for the symposium can be obtained

from Cara M. Cavallini, Judicial Administration Division, American Bar Association, 541 North Fairbanks Ct., Chicago, IL

60611, phone (312) 988-5700, fax (312)

988-5709. ❏

National Roundup of State–Federal Judicial Councils

State, Federal Appellate Judges Will Meet in Washington

in March to Focus on Judicial Roles Beyond Courtroom

Justice Elizabeth B. Lacy

Virginia Supreme Court

Judge Deanell R. Tacha

U.S. Court of Appeals for

10th Circuit

California—The spring meeting of the

California State–Federal Judicial Council

was held in Palm Springs on April 28, 1995.

Chief Justice Malcolm M. Lucas (Cal. Sup.

Ct.) presided over the meeting.

Council members voted to add a U.S.

bankruptcy judge to the council. They also

engaged in a discussion of capital habeas

corpus issues and, in particular, delays in

processing these cases.

The council heard reports on the status

of metropolitan councils. The Los Angeles,

eastern California, and southern California

metropolitan councils all met in the late

winter and spring. No meeting of state and

federal judges in northern California was

held.

Other topics taken up at the meeting

included proposed legislation on lawyers’

duty of confidentiality and participation by

judges in the national town hall video conference as part of the council’s “public

confidence in the judiciary” program.

The council met again on October 13,

1995, in Pasadena, and was chaired by

Chief Judge J. Clifford Wallace (U.S. 9th

Cir.). It created a new subcommittee on

civil and prisoner pro se litigation and appointed members to the new subcommittee

and the following existing subcommittees:

Capital Habeas Corpus, Council Structure,

Coordination of Large Cases/Resources,

and Long-Range Planning.

Judge Wallace asked the judges in each

district to prepare brief reports on the status

of the capital habeas corpus cases in their

districts, and to advise the council of the

main causes for delay and give any suggestions for how to overcome them.

Associate Justice H. Walter Croskey (Cal.

Sup. Ct.) reported on two regional state–

federal judicial council meetings held in

Los Angeles, one of which was held to

discuss bankruptcy issues with state judges.

An attempt will be made to institutionalize

quarterly or semiannual meetings of the

regional council meetings in each of the

federal districts of the state.

Chief Justice Lucas reported on the state

government’s efforts to consolidate municipal and superior court operations for

greater economies and efficiencies. David

Halperin (Cal. A.O.) advised that the California Judicial Council had approved a new

procedural rule requiring counsel to notify

the court of any related cases that have been

filed in the state or federal courts in California. A committee of the council chaired by

Judge Fern M. Smith (U.S. N.D. Cal.) assisted in the drafting of this new rule. The

council heard additional reports on public

confidence in the judiciary, Indian tribal

courts, legislation to split the Ninth Circuit,

funding for race and gender bias studies,

and a seminar on bankruptcy law for California state judges to be held in November

1996.

Florida—The Florida State–Federal Judicial Council met on January 13, 1995, in

Miami and again on June 23, 1995, in

Orlando.

Attending the January meeting, in addition to the member judges, were the attorney general of Florida, the president of the

Florida Bar Association, and a representative of the criminal law section of the Florida

Practice Committee of the Florida Bar Association. In the January meeting, Chief

Justice Stephen H. Grimes (Fla. Sup. Ct.)

emphasized the importance of the council

as a vehicle for the exchange of valuable

ideas between the state and federal judiciaries. In other business, the council adopted

a resolution relating to calendar conflicts

and case priorities. The resolution established the following case priorities: (1)

criminal cases should prevail over civil

cases; (2) jury trials should prevail over

nonjury trials; (3) appellate arguments, hearings, and conferences should prevail over

trials; and (4) the case in which the trial date

has been first set should take precedence.

The resolution also contained procedures,

in the event of a calendar conflict, for

attorney notification to opposing counsel,

the clerks of the courts involved, and the

presiding judge in each case. The resolution was published in the Florida Rules of

Court.

Justice Ben F. Overton (Fla. Sup. Ct.)

reported on the Office of the Capital Collateral Representative in the offices of the

Supreme Court of Florida. This office, created as a result of actions of the Florida

State–Federal Judicial Council, compiles

data on all death penalty cases and assists in

the recruitment of death penalty counsel.

Members of the council participated in a

discussion of the office’s work and the

operations of the resource center for capital

cases at Florida State University, and funding problems for both organizations.

Other topics discussed at the January

meeting included joint discovery activities

(which was working well in multidistrict

and antitrust cases), misfiling of cases in

state and federal courts, and sharing of

judicial education programs.

In opening remarks at the June meeting,

held during the meeting of the Florida Bar

Association, Chief Judge Gerald B. Tjoflat

(U.S. 11th Cir.) encouraged the council to

consider again joint education programs

and suggested that a joint program on death

penalty cases would be appropriate.

Representatives of the Office of the Capital Collateral Representative raised the issue of recruitment of private counsel for

capital cases and conflicts in representation. Various methods of recruitment were

discussed, as were funding issues.

Chief Judge Maurice M. Paul (U.S. N.D.

Fla.) reported on a proposal for joint education programs for state and federal judges,

to be conducted in cooperation with the

Federal Judicial Center. This matter will be

pursued by the Florida state court education program personnel.

Other matters discussed at the meeting

were fact-finding procedures in habeas cases

in state courts, new uniform rules in the

federal district courts in the northern and

See ROUNDUP, page 4
2 • State–Federal Judicial Observer • a publication of the Federal Judicial Center to further state–federal judicial relations • Number 11 • January 1996

OBITER DICTUM

A note to our readers

The State–Federal Judicial Observer welcomes comments on articles appearing in it and ideas

for topics for future issues. The Observer will consider for publication short articles and

manuscripts on subjects of interest to state and federal judges. Letters, comments, and articles

should be submitted to Interjudicial Affairs Office, Federal Judicial Center, Thurgood Marshall

Federal Judiciary Building, One Columbus Circle, N.E., Washington, DC 20002-8003.

by Dr. Victor Eugene Flango

Acting Vice President of Research

National Center for State Courts

Proponents of federal courts’ diversity-of-citizenship jurisdiction argue that a basic reason to retain such

jurisdiction is protection of out-ofstate litigants. In Erie R. R. v. Tompkins,

304 U.S. 64 (1938), the U.S. Supreme

Court acknowledged that “diversity of

citizenship jurisdiction was conferred

in order to prevent apprehended discrimination in state courts against those

not citizens of the state.” This perceived bias against out-of-state residents is compounded by a perceived

bias against large corporations. Based

on these perceived biases, one would

expect that the most likely diversityof-citizenship cases filed in federal

court would be those brought against

an in-state individual by an out-ofstate corporation. But how often does

this situation occur?

In 1993, 28% of diversity cases in

federal courts (14,470 cases) were

originally filed in state court and then

removed to federal court. Not surprisingly, out-of-state businesses accounted

for 61% (10,608) of the removals.

What was unexpected, however, was

the distribution of the 30,399 cases

originally filed in U.S. district court.

The accompanying table shows that

43% (13,003) of the original petitions

filed in 1993 were filed by in-state

individuals and 11% (3,470) by in-state

businesses. In other words, in-state residents filed more cases in federal courts,

rather than in the presumably more

friendly state courts, than did out-ofstate residents. In most of these cases

filed by in-state residents, the defendant was an out-of-state corporation.

These facts should at least cause reflection on one argument for diversity-ofcitizenship jurisdiction and encourage

more research to discover why in-state

individual plaintiffs chose federal

courts, given the supposed advantages

of in-state plaintiffs confronting outof-state defendants in the local,

“friendly” state courts. ❏

second model, the federal process theory of

federalism. According to this model, the

Constitution’s framers protected the integrity of state governments through the structure of the federal government rather than

through judicially enforceable limits on the

scope of national regulatory power. In particular, advocates of this model maintain

that the U.S. Senate protects state interests

by guaranteeing equal representation to each

state. Because the federal legislative process adequately protects state interests, federal process theorists conclude that the states

need no further protection

from the courts.

In the Garcia decision,

the Supreme Court enthusiastically embraced this federal

process model. The Court declared “[W]e are convinced

that the fundamental limitation that the constitutional

scheme imposes on the Commerce Clause to protect the

‘States as States’ is one of

process rather than one of result.”

Under some circumstances, the federal

process model accurately describes the

political relationship between state and federal governments. State governments have

powerful lobbying groups to assert their

interests, and federal representatives frequently heed those voices. The history of

federal legislation demonstrates that the

states frequently influence the legislative

process and that they have achieved exemption from many important federal laws.

The cases that come to court, however,

are the ones in which state governments

have failed to achieve their ends. The question is whether the structure of the federal

government is sufficiently sensitive to state

interests to leave the important task of policing federal-state relations entirely to

Congress, the President, and administrative agencies.

When measured against this yardstick,

the federal process model suffers from several fatal flaws. The most fundamental of

these flaws is the model’s very assumption

that the political process contains safeguards

that systematically protect the interests of

state governments. The composition of the

U.S. Senate does not protect the institutional interests of state governments; instead, it protects the private interests of

citizens of less populous states.

More important, even if senators and

other national officials maintain some loyalty to the institutional interests of state

governments, that commitment is only one

of several competing interests in the national political process. Politics is a process

of compromise, in which one interest rarely

triumphs absolutely over all others. If state

autonomy is an important component of

our government—one that should be preserved whatever the countervailing pressures—then we cannot trust that principle

solely to the political process.

The federal process theory fails to protect adequately the health of state governments within the federal system. In 1992,

the Supreme Court, in a case from New

York, appeared to recognize these flaws,

abandoned the federal process theory, and

embraced its third model of federalism.

The Autonomy Model

This third and most recent model of

federalism is the state autonomy model,

which arose from New York v. United States,

505 U.S. 144 (1992). According to autonomy theorists, courts should intervene

in the political process to protect the independence of state governments, but only

when the federal government has tampered

with the independent relationship between

Rya W. Zobel, Director, Federal Judicial Center

Russell R. Wheeler, Deputy Director, Federal Judicial Center

EDITOR:

James G. Apple, Chief, Interjudicial Affairs Office, Federal Judicial Center

EDITORIAL ADVISORY BOARD

Justice Susan P. Graber, Oregon Supreme Court; Chief Justice Thomas J. Moyer, Supreme

Court of Ohio; Judge Sandra Mazer Moss, Court of Common Pleas of Philadelphia; Judge

Alexander H. Williams III, Superior Court of Los Angeles County; Senior Judge Peter T. Fay,

U.S. Court of Appeals for the Eleventh Circuit; Senior Judge Monroe G. McKay, U.S. Court

of Appeals for the Tenth Circuit; Judge Robin J. Cauthron, U.S. District Court, W. D. of

Oklahoma; Chief Judge Michael A. Telesca, U.S. District Court, W.D. of New York; Mr. Robert

M. White II, Washington, D.C.; Professor Daniel J. Meador, University of Virginia Law School,

Charlottesville, Va.; Professor Ira P. Robbins, Washington College of Law, American University, Washington, D.C.

Published in the Interjudicial Affairs Office, Federal Judicial Center, One Columbus Circle,

N.E., Washington, DC 20002-8003; phone: (202) 273-4161, fax: (202) 273-4019

The opinions, conclusions, and points of view expressed in the State–Federal Judicial

Observer are those of the authors or of the staff of the Interjudicial Affairs Office of the Federal

Judicial Center. On matters of policy, the Federal Judicial Center speaks only through its Board.

State–Federal Judicial Observer

a publication of the Federal Judicial Center

Distribution of Parties in Diversity Cases in Federal Courts, 1993

(figures provided by William T. Rule of the Administrative Office of the U.S. Courts)

Diversity Jurisdiction: Statistics Defy

Conventional Wisdom About Preferences The Three Faces of Federalism

by Deborah Jones Merritt

John Deaver Drinko/Baker & Hostetler

Professor of Law

Ohio State University School of Law

(A longer version of this commentary appeared

in the Vanderbilt Law Review, vol. 47, no. 5,

Oct. 1994. The portions appearing here are

reprinted with the permission of the Vanderbilt

Law Review.)

The relationship between state and federal power has puzzled jurists since this

nation began. During just the

last twenty years, the Supreme Court has fashioned

three different—and discordant—faces for federalism.

It is time to assess the Court’s

three models of federalism

and determine whether any

of them provide an appropriate principle to guide future

federal–state relations. The

Court’s first two models of

federalism are outdated or

incompatible with political

reality. The third model, however, holds

some promise for adjudicating the future

bounds of state and federal power.

The Territorial Model

The first and oldest of the Supreme

Court’s concepts of federalism is the territorial model. This model recognizes that

there is a discernible boundary between the

subjects fit for national regulation and those

reserved for state governance. Territorialists

argue that the federal government is supreme in some areas, while states reign

sovereign in others. Adherents of this model,

for example, might declare that the federal

government directs foreign affairs while

the states control domestic relations.

Under the territorial model, federalism

violations occur when the federal government attempts to invade a substantive area

of law reserved to the states. The Supreme

Court’s decision in National League of Cities v. Usery, 426 U.S. 833 (1976), drew

heavily on this model, especially as the

decision was interpreted by lower courts

and commentators. In Usery, the Court held

that Congress could not regulate the wages

and hours of state and local employees

working in areas of “traditional governmental functions.” This emphasis on traditional functions evoked a territorial concept. State employees working in traditional spheres (such as fire prevention, police protection, sanitation, public health,

parks, and recreation) were subject to state

regulation while workers in other “nontraditional” fields, such as railroad operation,

submitted to national legislation. By dividing government functions into state-regulated zones and nationally dominated

spheres, Usery endorsed a territorial approach and spawned a decade of lawsuits

attempting to distinguish traditional governmental functions from nontraditional

ones.

The territorial model of federalism is

problematic because it conflicts with modern concepts of Congress’s power under the

Commerce Clause, Spending Clause, and

other constitutional provisions. The Supreme Court has interpreted congressional

power under those clauses to the effect that

virtually no substantive area of law is now

beyond the federal government’s reach.

Education, domestic relations, local transit, health care—all of these areas affect

interstate commerce in our economy or

receive sizable federal subsidies.

The Federal Process Model

In 1985, frustrated with the shortcomings of territorial federalism, the Supreme

Court abandoned territorialism in Garcia v.

San Antonio Metropolitan Transit Authority, 469 U.S. 525 (1985), and adopted its See OBITER, page 4

J U D I C I A

F

L

E D E R A L

C E N T E R

In-State 

Individual

Out-of-State 

Individual

Foreign 

Individual

In-State 

Business

Out-of-State 

Business

Foreign 

Nation

Total

In-State 

Individual

Out-of-State 

Individual

Foreign 

Individual

In-State 

Business

Out-of-State 

Business

Foreign 

Nation Total

Plaintiffs

Defendants

77

3,140

463

230

2,467

30

6,407

603

1,684

311

52

1,912

50

4,612

13,003

7,660

1,047

3,470

5,121

98

30,399

99

14

4

43

18

2

180

7,832

2,152

119

2,197

503

14

12,817

1,107

164

29

209

35

1

1,545

3,285

506

121

739

186

1

4,838
State–Federal Judicial Observer • a publication of the Federal Judicial Center to further state–federal judicial relations • Number 11 • January 1996 • 3

State, Federal Judges Should Preserve Private Records;

Chambers Papers Provide Valuable Historic Materials

The Ninth Circuit Council adopted this

resolution at its meeting on November 21,

1995. According to Chief Judge J. Clifford

Wallace (U.S. 9th Cir.), the resolution was

sent to the state–federal judicial councils in

all of the states of the Ninth Circuit.

In his report accompanying the resolution, Judge Canby stated that the task force

over the past several years has devoted its

efforts “toward easing jurisdictional tensions, promoting comity, and building mutual understanding and respect between the

federal courts and the tribal courts of the

various Indian nations that reside within

Ninth Circuit boundaries.”

Judge Canby noted the increased attention of federal and state judiciaries to tribal

courts and tribal judges in recent years. He

attributed this increased attention to federal

judges like Judge Wallace and Judge Monroe G. McKay (U.S. 10th Cir.) who wish to

stimulate activity involving tribal courts

and tribal judges at the local level. Judge

Canby also cited U.S. Attorney General

Janet Reno’s interest in tribal courts and

law enforcement issues in Indian country,

and the “increased complexity of life on

tribal reservations and increased contacts

between Indians and non-Indians, especially among those tribes that are involved

in gambling casinos.”

Judge Canby said that many state judiciaries (e.g., Arizona’s) have had a long and

continuing interest in Indian matters and

have been engaged in activities designed to

lessen tensions between Indians and nonIndians.

Several state–federal councils in the

western United States have acted on the

issue of tribal representation. In November

1993, the Oregon State–Federal Judicial

Council invited the chief judges of the

Warm Springs and Umatilla tribal courts to

become full voting and participating members. The Washington State–Federal Judicial Council recently invited Chief Justice

Elbridge Coochise of the Hopi tribe to its

meeting. The Arizona State–Federal Judicial Council will consider in early 1996

changes to its charter to include representatives of tribes within its borders.

In 1994, the Conference of Chief Justices changed the name of its committee on

federal–state relations to the Standing Committee on Federal–State–Tribal Relations.

The Conference adopted a resolution relating to a National Center for State Courts

(NCSC) project, “The Tribal Courts and

State Court: The Prevention and Resolution of Jurisdictional Disputes,” which was

funded by the State Justice Institute. The

resolution expressed support for a proposal

of the NCSC to the Bureau of Justice Assistance of the U.S. Department of Justice to

fund further initiatives in the area of resolving disputes among tribal, state, and federal

courts.

Future projects would be guided by four

basic principles previously approved by the

chief justices:

1. Tribal, state, and federal courts should

continue cooperative efforts to enhance relations and resolve jurisdictional disputes;

2. Congress should provide resources to

tribal courts consistent with their current

and increasing responsibilities;

3. Tribal, state, and federal authorities

should take steps to increase the crossby James G. Apple

State and federal judiciaries around the

country are giving increased attention to

tribal courts, judges, affairs, and issues,

including tribal representation on state–

federal judicial councils.

An example of this trend is the recent

adoption of a resolution by the U.S. Ninth

Circuit Judicial Council relating to the inclusion of tribal judges on state–federal

judicial councils of the states within the

circuit.

The resolution was submitted to the council by its task force on tribal courts, chaired

by Judge William C. Canby, Jr. (U.S. 9th

Cir.). The resolution states:

“The Judicial Council of the Ninth Circuit, continuing its 15 years of support for

strengthening the viability of state–federal

judicial councils, encourages the councils

of this circuit, to the extent that they have

not already done so, and to the extent that

there are vital and functioning court systems of federally recognized Indian tribes

in the state, to invite judges or other representatives of those tribal courts to fully

participate in the state–federal councils’

deliberations as equal members of such

councils. The judicial council offers the

services of its Task Force on Tribal Courts

to assist councils in identifying appropriate

tribal court representatives, in articulating

tribal court issues for council agendas, and

in providing such other assistance as will

facilitate inclusion of tribal court judges

and full and fair consideration of issues of

mutual concern to the tribal, state, and

federal court systems.”

By preserving chambers papers, state

and federal judges can contribute to a better

understanding of the judiciary, which is

necessary for the proper functioning of a

democracy. Chambers papers include private judicial correspondence, private notes

and memoranda, drafts of opinions and

other judicial papers, appointment calendars, and similar personal and professional

papers. These papers support scholarly research, which in turn can enhance and influence public opinion about the judicial

system.

Chambers papers are useful in several

ways:

• They can be a valuable source of information for judicial administration matters,

such as judicial workloads and their effects

on judges.

• They may be particularly important

where docket records have been lost to fire,

flood, or war. Under such circumstances,

they may be the only extant source of information about the workload of a court.

• They can provide supporting material

for judicial education programs by providing insights into particular judicial problems.

• They are useful sources of information

about public reaction to decisions. Some

judges receive correspondence from the

public in response to their decisions. Other

judges use their own memoranda to note

and preserve information about public reactions to particular cases and their impressions about such reactions.

• They provide insight about a particular

historical period.

• They are valuable even from judges not

involved in highly visible litigation. They

reveal how new judges adapt to the judicial

role, the range of judicial and other professional colleagues who may influence judges’

views of their jobs, and the variety of administrative and other demands that help

shape the lives of judges.

• They can benefit not only history but

the judge. Once an agreement is reached

with a repository, noncurrent records can

be shipped out of chambers for storage at

the repository on a regular basis, freeing

chambers space. Most repositories will return records if the judge needs them.

Chambers papers of a judge are generally considered to be the judge’s personal

property to be preserved at his or her discretion, although different jurisdictions may

have different rules governing which materials judges create are official records and

which are for the judge to dispose of as he

or she wishes. Even where judges have

unfettered authority to dispose of their chambers papers, few have deposited them in

archives. For example, chambers papers

for only 10% of the federal judges appointed during the 206-year history of the

federal courts are currently in archival collections.

Judges usually say that their reason for

not preserving their chambers papers is that

the papers contain little of value. Judges,

like others in government office, generally

underestimate the historical usefulness of

their words and deeds. Even Chief Justice

John Marshall asserted in a note to Joseph

Story, “The events of my life are too unimportant, and have too little interest for any

person not of my immediate family, to

render them worth communicating or preserving.”

The judicial branch has suffered because

of such neglect—it has not received the

historical attention it deserves, especially

in comparison to the other two branches of

government.

With access to the papers of judges,

scholars can document the rich fabric of the

judicial process in America. Such scholarly

work, in turn, becomes the basis for textbooks and other curriculum, which gradually can broaden students’ and citizens’

views of the courts.

The process of preserving chambers papers as a historical resource is not complicated. Judges who desire to make their

papers available should contact a suitable

repository—e.g., a state archive, a university or a state historical society. While the

archive will assess the collection to determine its potential historical usefulness and

thus the merits for retention, such an assessment should not discourage judges from

seeking to deposit their papers. Archivists

are not just looking for chambers papers

from judges who were involved in prominent litigation or significant judicial events.

Even the papers of judges whose careers

were thoroughly prosaic may be of interest

to researchers. Nevertheless, the final determination as to the suitability of preserving a collection rests with the repository.

If a judge is not successful in making

preservation arrangements with one archive,

other depositories should be sought.

Once an archive has agreed to accept a

collection of chambers papers, the transfer

recognition of judgments, final orders, laws,

and public acts of the three jurisdictions;

and

4. The goal of future federal, state, and

tribal courts’ efforts should be to define

what is the appropriate jurisdiction of tribal

courts over conduct in Indian country by

tribal members, nonmember Indians, and

non-Indians.

The new project, involving federal as

well as state and tribal courts, would support the creation of tribal-state-federal court

forums, promote communication and cooperation, and develop intergovernmental

agreements that would provide for the following: (1) cross-use of facilities, programs,

and personnel in each of the systems, (2)

exchange of justice system records information, and (3) extradition to and from

Indian country.

The Judicial Education Division of the

Federal Judicial Center and the U.S. Department of Justice are planning a joint

seminar for the fall of 1996 that will involve

federal and tribal judges (and possibly state

judges or other state officials as faculty

members) on the issue of Indian child sexual

abuse and jurisdictional and substantive

law issues relating to such crimes. The

goals of that program are (1) strengthening

generally relationships among federal and

tribal judges and increasing appreciation

among federal judges of Indian law and

culture; (2) developing a protocol for federal–tribal court cooperation in the handling of such cases; and (3) development of

a model training curriculum that would be

tested in one locality and then be replicated

in other appropriate settings. ❏

can be accomplished by a Deed of Gift or by

provision in a will. Deeds of gift or wills

should include provisions to restrict access

until a date when the release of the papers

would not adversely affect individuals or

institutions mentioned—judges can determine when access to their collection should

be granted. Judges can even arrange to send

chambers papers to an archive on a continuing scheduled basis. This relieves them of

having to maintain space for the papers but

provides an opportunity to retrieve them. It

also spares staff and family the burden of

having to decide hastily about chambers

papers at the time of death.

Federal courts and some state courts can

pay, under most circumstances, for the cost

of shipping papers to a repository. ❏

Tribal Courts, Judges Given Increased Attention in Judiciary Affairs

Judges Meet to Discuss Mass Tort Litigation

The Mass Tort Litigation Committee (MTLC) of the Conference of Chief Justices

regularly meets to discuss and make recommendations concerning judicial handling of toxic substance and other mass-disaster cases with a national scope. The

committee is composed of state court judges who regularly hear such cases, and a

federal judge who serves as committee liaison to the federal judiciary. Judge Charles

R. Wolle (U.S. S.D. Ia.), currently serving as federal judiciary liaison for the

committee, urged judges at the most recent meeting of the committee in Denver in

November 1995 to organize and become active in state–federal judicial councils as

a means of promoting judicial cooperation. Pictured above are, from left, three

members of the committee: Judge Robert H. Alsdorf (Wash. Super. Ct.), Judge

Margot Botsford (Mass. Super. Ct.), and Judge Hiller B. Zobel (Mass. Super. Ct.).
4 • State–Federal Judicial Observer • a publication of the Federal Judicial Center to further state–federal judicial relations • Number 11 • January 1996 State–Federal Judicial Observer (#11) a publication of the Federal Judicial Center Interjudicial Affairs Office Federal Judicial Center Thurgood Marshall Federal Judiciary Building One Columbus Circle, 

N.E.

Washington, DC 20002-8003

a state government and its voters. That sort

of interference occurs when the federal

government dictates the structure of state

governments, commandeers the energy of

state administrators, or forces state enactment of particular laws—all without offering state governments the option of

nonparticipation.

When the federal government acts in

this manner, it does more than simply exercise its power under the Supremacy Clause

to regulate a particular field of private conduct and preempt contrary state laws. Instead, these actions destroy the essential

autonomy of state governments by forcing

those governments to respond to the commands of the U.S. Congress rather than to

the dictates of their voters.

In New York v. United States, the Supreme Court endorsed the autonomy model

of federalism, while dealing fatal blows to

both the territorial and federal process models. The Court struck down one provision of

the Low-Level Radioactive Waste Policy

Amendments Act of 1985, not because

Congress had invaded a substantive field

reserved to the states, but because Congress

had attempted to “commandee[r] the legislative processes of the States by directly

compelling them to enact and enforce a

federal regulatory program.” Even when

the Constitution empowers Congress “to

pass laws requiring or prohibiting certain

acts” by private citizens, the Court held that

Congress “lacks the power directly to compel the States to require or prohibit those

acts.” Throughout the New York opinion,

the Court declared its concern with protecting the autonomous processes of state government and the political accountability of

state and federal governments.

To assess the value of the autonomy

model, it is necessary to ask first whether

state governments confer any benefits on

our society.

There are at least four values in the

continued existence of autonomous state

governments. First, independent state governments check the power of the federal

government. As long as they remain autonomous, states can muster considerable

lobbying and litigation forces to challenge

federal regulation. With the power to reject

participation in federal programs, state governments can also negotiate with federal

representatives to affect the content of those

programs. And state governments serve as

political breeding grounds, where parties

and factions excluded from national power

rebuild their strength and new political

forces gain footholds. Without these checks,

our powerful national government could

become overbearing.

Second, state governments help introduce a diversity of participants into the

political process. These governments seem

more adept than the national government at

drawing in new political faces. Almost every political minority in the United States—

from Irish Americans at the beginning of

this century to women today—has gained

experience in state or local politics before

climbing into national prominence.

Third, despite the homogenizing force

of McDonald’s and other chain enterprises

from coast to coast, state governments continue to provide choices in living conditions. Some states are friendly to the environment, while others are more friendly to

business. The amount of money expended

on education, welfare, and health care varies widely from state to state. For a nation

composed of diverse racial, cultural, and

religious groups, this opportunity to express multiple social values is essential.

 Finally, states offer the laboratories for

social experimentation immortalized by Justice Brandeis. His words have become a

cliché, yet they speak a substantial truth.

Unemployment compensation, antidiscrimination laws, no-fault compensation

schemes, and other social programs emerged

from state experiments.

The autonomy model of federalism is

useful because it recognizes just these values in state governments. State governments forced to implement federal commands are unlikely to check the power of

their commanding officer. Nor are such

governments likely to give political newcomers the training they need to succeed in

national politics. Middle managers who

lack autonomy to govern their own domains never have been known for promoting diverse living conditions or social experiments. In management theory, autonomy means innovation and diversity,

while central control is synonymous with

sameness and rigidity. To promote the four

values of federalism, states must retain

some measure of autonomy.

The Most Important Question

I have saved the most important question for last: Even if the autonomy model

promotes important values and imposes no

substantial costs on the federal government, does the model derive from constitutional text? Without a constitutional anchor, the Supreme Court lacks power to

strike down any federal statute, no matter

how well-crafted the Court’s political theory.

In New York, the Supreme Court rooted

its autonomy model in a symbiotic reading

of the Commerce Clause and the Tenth

Amendment. The Court recognized that the

Tenth Amendment contains no language

that could be read as an affirmative limit on

the powers conferred by Article I of the

Constitution. At the same time, the Court

suggested that the existence of the Tenth

Amendment implies inherent limits in the

powers conferred by that article. The Tenth

Amendment and Commerce Clause together, in other words, achieve what the

Tenth Amendment alone could not.

If the federal government pledges to

maintain a republican form of government

in each state, as it does in the Guarantee

Clause, then a fortiori the federal government promises to maintain governments

within those states. A republican government, moreover, is accountable to its electorate. It is not responsible to divine power,

an inherited monarchy, or even the federal

government. Through the Guarantee Clause,

therefore, the federal government pledges

to maintain autonomous governments in

each state—governments that are responsible to the people of the state rather than to

the federal government.

Conclusion

I have argued that autonomous state governments are political assets that require

judicial protection against national intrusion, that the Supreme Court’s autonomy

model offers the best possibility to provide

that protection, and that the autonomy model

is best rooted in the text of the Guarantee

Clause rather than in the shadows of the

Tenth Amendment and Article I. The autonomy model of federalism promises the

best of two constitutional worlds. It promotes a strong federal government free to

regulate any field of private endeavor, while

also preserving healthy state governments

to regulate the fields Congress avoids, opening political doors to new faces, promoting

diverse living conditions, and spawning

innovative programs. This update of an

eighteenth century vision is the best forsouthern regions, dispositional guidelines mula for the future of federalism. ❏

for judges, and the growing number of pro

se prisoner cases.

Iowa—Marshalltown was the site of the

September 28, 1995, meeting of the Iowa

State–Federal Judicial Council, attended

by three federal and three state judges.

Topics discussed included the following:

• qualified interpreters in both state and

federal courts (members of the council noted

the telephone interpreting project in the

U.S. District Court in New Mexico);

• the Iowa State–Federal Pictorial Directory, a project of the Iowa Judges Association, containing photographs of all state

and federal judges in the state—the directory will be made available to those judges

(the Chief Deputy Clerk of the U.S. District

Court for the Southern District of Iowa,

Rob Raker, provided most of the photography for the project);

• state judge assistance in providing

search warrants, arrest warrants, initial appearance hearings, and preliminary hearings and other judicial services for federal

law enforcement officers in areas where

federal judicial officers are unavailable;

• support for renewed funding for the

State Justice Institute; and

• the status of the long-range plan for the

federal courts.

Louisiana—New Orleans was the site of

the October 1, 1995, meeting of the State–

Federal Judicial Council of Louisiana. Chief

Justice Pascal F. Calogero presided. Five

issues were discussed at the meeting: (1)

Congress’s elimination of funding for postconviction defender organizations; (2) certification of questions of law from U.S.

district judges; (3) state judge participation

in pretrial conferences of Louisiana prison

cases in federal district courts to determine

the number of state inmates that can be

housed in parish jails; (4) change in scheduled time for execution of prisoners given

the death penalty to the same time as the

State of Texas; and (5) a proposal to schedule a panel of some members of the council

for the spring meeting of Louisiana state

judges. Council members were generally

opposed to allowing district judges to certify questions of law to the Louisiana Supreme Court, but supported continuation of

certification of state law questions by U.S.

Courts of Appeals.

Virginia—Chief Justice Harry L. Carrico

(Va. Sup. Ct.) presided over the meeting of

the Virginia State–Federal Judicial Council

on September 28, 1995, held in the Supreme Court Building in Richmond. Following a general discussion on the transformation of the American judiciary, Judge H.

Emory Widener (U.S. 4th Cir.) led a discussion on saving the federal judiciary from

the federalization of state crime. The discussion included comments from Justice

Carrico and Judge Tristram T. Hyde IV (Va.

Dist. Ct.). Justice Carrico reviewed actions

at the most recent meeting of the Federal–

State Jurisdiction Committee of the Judicial Conference of the United States, including proposals for change in diversity

jurisdiction. Bankruptcy Judge David H.

Adams (U.S. E.D. Va.) addressed the issue

of state judges’ difficulties with automatic

stay provisions of the bankruptcy code, the

need for training, and the possibility of

development of a benchbook. Judge Adams

also reviewed an upcoming program of the

Virginia Bar Association on judicial independence.

Washington—Seattle was the site of the

November 7, 1995, meeting of the Washington State–Federal Judicial Council. Chief

Justice Barbara Durham (Wash. Sup. Ct.)

introduced Judge Otto R. Skopil, Jr. (U.S.

9th Cir.), Chair of the Long-Range Planning Committee of the Judicial Conference

of the United States, who discussed the

long-range plan with council members. The

plan was presented to the Judicial Conference in March 1995. Judge Skopil explained

the plan and heard comments from state

judges who were concerned with some of

the implications of the plan, including its

proposed reallocation of caseloads to shift

more burdens to the state courts. In other

business the council elected Judge William

F. Nielsen (U.S. E.D. Wash.) as new chair

of the council, succeeding Justice Durham,

whose two-year term as chair ended. ❏

ROUNDUP, from page 1

OBITER, from page 2